*1 Mich 413 96 STATE LEGISLATURE — 1982 re OF In APPORTIONMENT 1). (Calendar 5, Argued No. March No. 68777. Docket Decided Supreme 25, by of the Appeal the Court dismissed March 1982. 12, 1982. United States on October that, following 4, §§2-6, 1963, provides art The Constitution census, Legislative the Commission decennial each federal proceed to district Apportionment convened and shall shall be Representatives in apportion and the House the Senate and by prescribed Should a the constitution. rules accordance with agree upon reapportionment majority commission not of the Court, proposed plans upon Supreme plan, submission commission, by shall determine of the the Court members accurately complies plan with constitutional most which requirements adoption. order its and districting prescribed by the constitution The rules weighted Legislature land area- apportioning are based on adoption Shortly of the 1963 after the formulae. Constitution, Supreme of the United States held Court Equal of the Protection Clause violate the such formulae Nevertheless, the commission con- States Constitution. United function, proposed and 1972 offered and in 1964 tinued to Supreme plans in each apportionment Court. Court to the accurately complied with which most instance determined adoption requirements directed its the constitutional however, case, did the Court address In neither the commission. authority question fundamental whether or decide the 4, §§2-6, Supreme under art the commission or apportionment despite partial invalidity of the continues following Supreme United Court of the the decision of the rules Thus, question was not con- that fundamental States. because [1] [2] [4, 25 Am Jur [3] [3, [6] [9] [5] 8] 7] 25 Am Jur 25 Am Jur 20 Am Jur 25 Am 25 Am Jur 25 Am Jur Am Jur Jur 2d, 2d, 2d, 2d, 2d, 2d, References 2d, 2d, Elections Courts § §§ Elections 17.§ Elections Elections 27. Elections Elections § Elections 17.§ 190. §§ § §§ for Points in Headnotes 16, 17, 32. 29. 18. 17-19. Supreme Michigan, sidered Court of the Court’s actions preceden- in the 1964 decisions are not tially binding. 12, 1982, February Legislative Appor- *2 On Commission on Supreme agree tionment advised the Court that it had failed to upon plan, pro- a and members the commission submitted posed plans procedure to the Court. The Court established a for filing plans requested argument and briefs and oral on the (1) questions: authority of whether the the the commission and despite weighted Court continues the the invalidation of land (2) formulae, area-population continues, authority if and the govern districting apportioning what standards the of the Legislature. Following briefing argument, opinion per in a unanimous Supreme curiam the Court held: provisions 4, apportionment 2-6, The of art be §§ cannot weighted area-popula- maintained. The invalidation of the land apportionment apportionment tion formulae invalidated all the they inextricably rules because are intertwined. The commis- apportionment However, sion cannot without survive rules. it is responsibility Supreme provide the of the Court to for the government continuity by assuring people that the will be provided opportunity apportioned Legis- lawfully the elect a Therefore, lature in the 1982 election. the Court the directs drawing compliant of election districts in a manner with fed- requirements eral constitutional consistent with the constitu- history Michigan. resulting plan, following tional sub- Court, approval by mission to and the shall stand until the Legislature people provide and the Governor or the an alter- plan by nate law. duty Supreme Court, It1. is the of the under the constitu- provision judicial tional power, for the exercise of to determine requirements Michigan the of the Constitution and to define meaning requirements specific applications. the of those in requirements” 4, 6, term "constitutional as in used art means § requirements 4, 2-6, the set forth art in §§ 1963 Constitu- Constitution, tion which are not violative of the United States requirements but does not include the of the United States Constitution. 2. The 1963 contemplate Constitution did not the that com- apportion Legislature mission would district and the in accor- requirements .dance with the of the United States Constitution concept legislative and the equal that in districts should be population. Rather, contemplated population it substantial ine- quality resulting apportionment between the districts from Mich weighted area-population according formulae. Elec- land to the along county lines without were be drawn tion district lines might population equality regard in be more to whether equality method. Considerations achieved different rights recognized and preservation constitutional the of other in were subordinated to the constitution articulated elsewhere 4, 2-6, apportionment in art insofar as §§ set forth criteria apportionment adopting the was 1964 and concerned. premise Supreme proceeding plans, Court erred legislative population dis- differential between the least requirement” primary within was "constitutional tricts concept 4, meaning the core emanat- of art 2-6. While §§ ing Equal of the United States from the Protection Clause Constitution, requirement it of art 2-6. §§ is not apportionment rules which take into 3. The factors and longer population as as can no account land area well they regarded requirements because effectual constitutional equality produce divergence goal from divergence exceeding range of allowable under United criteria set forth Constitution. Other States (1) however, Constitution, county, township, viz.: in the 1963 *3 lines, (2) existing boundary preservation city of senatorial and (3) convenience, districts, compactness, contiguity, rectan- and districts, uniformity, squareness gularly, ex- and of election justify press legitimate policies diver- rational and state which goal equality,
gence population and from the federal of strict consistently implemented Equal the can be with therefore Constitution, only the but to Protection Clause of United States divergence degree to the of not in excess of essential 16.4% goals. of the state achievement Supreme 4. the States has declared that The Court of United aspects people some of the method chosen the are violative apportionment of federal Those rules which the constitution. Equal the violate the Protection Clause are not severable from commission, Likewise, depen- do the rules which not. which the not the rules dent on rules is severable from invalidated Supreme and survive them. It is not for the cannot without Michigan people speculate Court of to on what the would respect with to decide the manner in which accomplished, to should be and the matter should be returned political process highlights the in a manner rather than which people the hides choices which the should make. Legislature power reapportion 5. The to redistrict and the however, only people, people. with The can exer- remains the matter, power, practical by amending the cise that as a consti- meantime, time-consuming. tution, In the which is difficult and require- Legislature, federal constitutional and there must be a prefer- people indicate their Until the ments must be observed. redistricting ence, provide and Supreme for the must the Court compliance apportioning Legislature with federal consistent requirements in a manner most and constitutional history Michigan. history That con- of with the constitutional contiguous, single-member to tains dominant commitments govern- along boundary units of lines of local districts drawn Supreme election Accordingly, Court directs that ment. preserve county lines with the as to districts shall be drawn so equality population principle of of least cost to the federal exceeding range allow- without of election districts between lines, necessary county divergence. it is to break able Where necessary popula- townships to reduce the number of the fewest divergence within shifted. Election district lines tion shall be representative, to more than one senator counties entitled preserve city township as to and likewise shall be drawn so lines, between districts where neces- with a shift range sary to remain within the lines so as break such townships divergence. and are entitled to more Where cities representative, election districts shall be than one senator or compactness range drawn to achieve maximum within a equality. of absolute 98%-102% Apol, Supreme appoints J. with the 6. The Bernard professional staff and facilities of the office of assistance of the State, supervise drawing Secretary of and submis- districting approval apportioning a and sion to the Court for requirements. Upon receipt plan consistent with these ordering plan, public hearing the Court will hold a before adoption. Legislature may, by approved by 7. a the Gover- statute preceding nor with immediate effect at least four weeks 1982, election, filing August, primary date for the redistrict and reapportion Legislature consistent with federal state redistricting requirements, statutory such constitutional reapportionment plan supersede shall directed be drawn the Court. rehearing May 1982. Court denied motion for *4 Levin, joined by Fitzgerald, fully Justice Justice concurred addressing denying rehearing the order and wrote a statement allegations the raised in the motion. They range departure 1. noted that while the of from the goal population equality permitted by Supreme Court of pertained the United States under the Fourteenth Amendment Mich legislature, apportionment plans adopted by a state higher required plans, standards were of “court-ordered” plans by Supreme court-ordered considered Court of the by plans were courts. The cases United States ordered federal plans involving plans that all federal' court-ordered did not hold according by by person drawn to criteria ordered a "court” or a designated body by automatically are or a court constitution- suspect they produce popula- ally if substantial deviation from Rather, legitimate equality. because of the state risk tion policies ignored would be or misunderstood a federal when apportions legislature, court a state and to limit encroachment Supreme sovereignty, on state Court of the States in United supervisory power the exercise of its limited the discretion of requiring greater population equality courts
federal fed- plans. present eral court-ordered That concern is not where a plan. state court a orders Apol plan 2. Even if would be considered a "court-or- plan law, meaning within the dered” federal case it is not Supreme under federal invalid criteria. The Court of the population United States held that a from 20% deviation se, equality per was not invalid but would be invalid in the significant policies acceptable absence of state or other consid- require adoption plan. erations which would of the Where there population equality, is more than de minimis variation from it responsibility apportioning is the court to articulate precisely why plan a with minimum variations adopted important significant could not be because of state rationally departure equal- considerations which mandate from ity. may depart It is clear that even a federal court from the population equality goal. standard of a achieve state Supreme Michigan goal preserv- Court of identified the state ing boundary Accordingly, local lines. a federal court could apportion Michigan Legislature goal to achieve that if all plan purposes state bodies failed to act. A is “state-ordered” for applying regardless the federal rule whether it is drawn legislature, commission, an board or or some person, agent, authority deriving authority other from a constitution, statute, opinion state’s or an of a state court. question comply The crucial is whether the was drawn to only with state and federal law or with federal law. challenge Apol plan ground 3. The to the on the its average population equality deviation from exceeded that of the plan approved by Supreme Court of the United States precedential support. without That Court has looked to the range divergence average rather than the deviation. The *5 higher average Apol plan deviation of the results from adher- goal depart ence to the state and is not a reason to from that goal. anticipate Supreme There is no the reason impose average of the United States would a limitation on the Average may deviation. or median deviation be a factor where invoked, sought the de minimis rule is to be but does not affect departures equality justified a case where from absolute are policy grounds. state Throughout Michigan populous history, 4. the course of populous counties have been subdivided and less counties have combined, resulting county remaining been in lines inviolate. political The reason for the use of counties was not the unit theory representation, requirement of but the constitutional of preservation autonomy political of electoral of local subdivi- Michigan history population-based sions. Because also has a of apportionment expressed constitutions, in its the Court’s articu- policy maintaining integrity lation of the state of its political subdivisions cannot be said to be a misstatement of Michigan history. Michigan constitutional No Constitution has provided legislative for the allocation of seats on purely population basis, permitted breaking single or has of a county apportionment line. The Court’s method of —indirect' apportionment by minimizing county line breaks statewide— yields admittedly arbitrary That, however, princi- results. is its pal provides objective it virtue: an and neutral resolution to an problem. population intractable equality variation from Apol plan which results range from the is within the estab- Court, lines, lished county breaks the fewest and shifts townships the fewest cities and people. and the fewest 5. provided In all parties events the Court oppor- has an tunity argument carefully argu- and has considered the ments jurisdiction advanced. The Court has retained with a ordering changes view to may required such as be to overcome plan, provide election, defects in the orderly for an and to compliance any enable superseding opinion. with adopting A final apportionment order plan an was entered on May 1982. Moody Justice dissented from the Court’s final order. He requires would hold that the law a closer adherence to the principle person-one constitutional of one vote. approve 1. The plan Court should which would adhere to duty population our controlling establish as the criterion in controversies. The extreme diver-
gence plan approved Court, allowed in applied in case, this state and in being this exception instead of 413 Mich unfolding commonplace. the Court’s re- An became perfect equality average percentage variations from sulted previously substantially greater allowed federal cases. than great have of the districts a substantial deviation A number and fall near the extremes the ideal-sized district from squared divergence. with This result cannot allowable overriding equality objective constitutional substantial population among districts. *6 apportionment should to create districts 2. The criteria strive unequal, possible. Rigid equal, the as adherence to as not as county population concerning and lines is criteria deviation may comport unnecessary be made sub- when modifications population equal- stantially primary principle the with of closer acceptable ity. Population equality limits should take within county precedence The unbroken lines. Court cannot over equality supersede principle substantial the constitutional of guise among policy. the state Suffi- election districts under of plan devise a modified which cient time was available to boundary followed the line criteria outlined the Court’s opinion, permitted only de from but which minimis deviation population equality. Apportionment Legislature — — 1. Law of Prece- Constitutional —(cid:127) dent Decided. Questions assumed, Supreme of Court which without address- Decisions the considering question, ing definitely the the Commission Legislative Apportionment Supreme and the Court contin- on authority of 1963 ued to have under the Constitution to estab- despite legislative partial lish and election districts determine apportionment invalidation the constitutional rules of Court, Supreme definitively United and which did not States requirements districting consider the constitutional binding apportioning Legislature, precedentially are not 2-6). (Const 1963, 4, art §§ Legislature Apportionment — — Equal 2. Constitutional Law of Protection. state, Equal require Protection not that a Clause does districting Legislature, apportioning alto- its subordinate rational, gether legitimate goals integ- preserving such as goal rity political population equal- of its subdivisions to the of honest, ity; good-faith must effort to con- state make an possi- nearly equal population struct districts of election as range divergence goal population ble with a of from of XIV). (US Const, equality greater no than Am 16.4% Apportionment In re Apportionment Legislature — — Equal 3. Constitutional of Law — Protection Words and Phrases. requirements” "constitutional as used in the section of The term provides Supreme 1963 which for the the Constitution of to determine which of submitted mem- Legislative Apportionment complies bers of the Commission accurately requirements, means most with the constitutional 4, 2-6, requirements set forth in art of the Constitution §§ respect apportionment which are not violative of 1963 with Equal of the Protection Clause of the United States Constitu- tion; Equal to the Protection Clauses of either it does not refer Michigan any the United States or Constitutions or to other (US Const, XIV; provision Michigan Constitution Am 2-6). 1963, 1, 2; 4, Const art art §§ § —- Apportionment Legislature — Equal 4. Law Constitutional Protection. provisions of the Constitution of 1963 which establish weighted area-population districting land formulae for the apportioning Legislature regard goals to the without achieving equality of within election districts and avoidance of discrimination are invalid as violative (US Equal Protection Clause of the United States Constitution 3). Const, 4, 2, XIV; Am art Const §§ Legislature — — Equal 5. Constitutional Law *7 Protection. requirements boundary
The of the state constitution that the political districting lines of subdivisions should be observed in apportioning Legislature and the and that election districts compact contiguous, should be and are not violative of the Constitution, Equal Protection Clause of the United States so long resulting diverge goal as the districts do not from the of (US equality population of between districts more than 16.4% Const, 2-6). XIV; 1963, 4, Am Const art §§ Apportionment Legislature — — Equal 6. Constitutional Law of Protection. Divergence by apportioning authority a state from the federal goal population permit- equality of between is election districts only permit necessary ted to the extent of achievement rational, legitimate integrity goals preserving the state such as subdivisions, 16.4%; political of the state’s but not more than range divergence necessary goals the of to achieve the state separately apportion- determined for the state as a whole when counties, ing representatives county senators and each for 413 Mich city apportioning county, and for each and
when so within representative township entitled to more than one senator apportioning in them. when Legislature Apportionment — — Equal Law of 7. Constitutional Protection. apportionment provisions of Constitution of 1963 are the and, weighted interdependent and not severable because the area-population formulae were held to be invalid under land Equal of the States Constitution the Protection Clause United Court, provisions by Supreme the must be the United States entirety; provides in their because the constitution invalidated only prescribed apportionment in accordance with the rules for constitution, Legislative Apportion- by the the Commission (US Const, upon ment their invalidation Am cannot survive 2-6). 4, XIV; art Const §§ Apportionment Legislature — —
8. Law of Constitutional Su- preme Court. power apportion Legislature with to district and the rests the however, people; people, upon because the the invalidation of Supreme the state constitutional rules the States, immediately Court of the United cannot indicate their preference, Supreme Michigan provide Court of must government assuring continuity people of will provided opportunity lawfully apportioned to elect a Legislature and, accordingly, in an imminent election until the act, people representatives provide or their must for the dis- tricting apportioning Legislature compliance of the with requirements federal constitutional and in a manner most history consistent with the constitutional of the state. Legislature. — 9. Constitutional Law Throughout history Michigan, the constitutional the dominant districting apportioning Legislature commitment in has contiguous, single-member been to election districts drawn along boundary government which, lines of local units of limitations, feasible; compact within those are as accord- ingly, districting apportioning Legislature following drawing each federal decennial census the state must involve preserve boundary of election districts so toas lines of local government principle units of with the least cost to the federal districts, equality divergence between not *8 to exceed 16.4%. Apportionment In re Opinion of the Court J. General, Frank Louis Kelley, Attorney J. Caruso, General, Gary Gordon, P. Solicitor Prosecuting Attorney, Assistant for the Attorney General.
Lewis, Adams, & Goodrich Tait Robert L. (by Jr.), Henry, for of Republican Appor- members tionment Commission.
Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, Sachs), P.C. Theodore Democratic for (by members of the Commission. Sedler,
Robert A. Edward J. and Hall Littlejohn, Bilicki, Hall), & P.C. Elliott S. Coleman A. (by for Detroit, Young, of the of and for the Mayor City for the of National Association Advancement Col- People. ored
Miguel Ortiz for Southwest Committee for Fair Representation. 1963, 4, Curiam. The Constitution
Per of art 2-6, that, provides following the decennial cen- §§ sus, on Legislative Commission Apportion- ment1 shall establish House and Senate districts accordance with rules there prescribed for district- ing apportionment. If a majority the com- mission agree upon cannot reapportionment then, plan, upon submission of plans this Court members commission, this Court shall determine which plan complies accurately most commission, consisting eight persons, four selected organizations parties, major political state of each the two empowered apportion repre to "district and the senate house of according provisions sentatives to the Const this constitution”. 1963, art 6.§ complete fn 2 See text 6.§ *9 413 Mich op
Opinion the Court requirements” order and constitutional with "the adoption.2 its agree plan, of the on each member If is a failure to there plan proposed may this Court. submit a commission publication plan, application days of after of a on Within 60 final jurisdiction, may elector, Court, original
any direct the commission plan the exercise of this duties, may any perform final its review commission, by to the adopted and remand such the shall require- comply “if it fails to with the for further action commission ments of this constitution”. following complete the text of 6.§ is art legislative apportionment. on "Commission legislative apportionment hereby estab- is "Sec. 6. A commission on electors, eight by consisting whom shall selected of four of be lished political parties organizations whose each of the two the state of general highest governor the vote at last received the candidates for election which a ment. If a candidate for governor preceding apportion- was elected each at governor political party has of a third percent gubernatorial than 25 of such election more received at such members, vote, of 12 four of whom shall the shall consist commission political organization party. One the state of the third be selected following regions be each of the four shall selected resident of each political party part boundaries (2) (1) organization: upper peninsula; the the northern peninsula, along of a northern of lower north line drawn the the Mecosta, Midland, Isabella, Bay, Ne- of the counties of (3) Oceana; waygo region the counties of Hillsdale; Michigan, those south of of and southwestern counties (2) along of drawn the western and west a line boundaries Shiawassee, Ingham, Bay, Saginaw, Jackson and (4) Michigan, remaining of the southeastern the counties state. membership. "Eligibility to federal, governments, employees "No officers or of the state or local reserve, excepting public notaries of the armed forces members membership eligible the for shall commission shall not be two the commission. Members eligible legislature until for election to years they apportionment participated be- after in which comes effective. term, "Appointment, vacancies. appointed immediately adoption "The commission shall be after the districting this constitution and whenever legislature required by provisions of this constitution. Members appointment of the commission or district- shall hold officeuntil each ing plan becomes effective. be filled in the same Vacancies shall original appointment. manner as for "Officers, appropriation. procedure, compensation, rules of secretary secretary "The of state shall be of the commission without
vote, furnish, capacity and in that under the shall direction op Opinion the Court the 1963 Constitution prescribed by The rules districting apportioning Legislature area/population land for- weighted are based on after Shortly adoption mulae.3 commission, necessary technical services. The commission shall all chairman, procedure, make its own rules of elect its own shall receive appropriate shall compensation provided by legislature law. The shall carry the commission to out its activities. funds to enable public hearings. convene; apportionment; "Call to constitution, days adoption of this and after "Within 30 after the census of total count of each federal decennial the official the state and its available, secretary political subdivisions is *10 convening the commission not less than 30 nor state shall issue a call complete days The commission shall its more than 45 thereafter. days necessary all census information is work within 180 after proceed apportion the available. The commission shall senate and house constitution. to district and representatives according provisions of final to the of this require All decisions shall the concurrence of a majority hold commission. The commission shall of the members of the public hearings may provided by law. as be plan, publication; proceedings. "Apportionment record of districting plan published apportionment and shall be "Each final adoption provided by days 30 from the date of its and as shall become law 60 shall and shall be law within days publication. secretary of state after proceedings keep public record of all the of the commission responsible publication of each for the and distribution plan. commission; “Disagreement plans supreme submission of court. agree plan, majority “If a of the commission cannot on a each commission, individually jointly member of the bers, or with other mem- supreme may proposed plan supreme court. The submit the plan complies accurately court shall determine which constitutional commission and most with the requirements adopted by it the and shall direct that be published provided as in this section. application. supreme elector’s "Jurisdiction of court on "Upon application days any 60 the elector filed not later than court, plan, supreme publication after final of commission to adopted commission for further action if it fails to ments of this constitution.” the in the exercise original jurisdiction, secretary of state or shall direct duties, plan perform may any their review final commission, such and shall remand require- comply with the provides The 1963 that both the Senate and Constitution single-member House are to be from districts. elected The Senate senators, districting purpose electing each the state for the Mich Opinion op the Court county land area and assigned apportionment factors which are based on 20% population. 80% counties, populous apportion- In the less those with less than 13 factors, arranged ment that are in ment possible, "existing the counties are to be into senatorial districts convenient, land, compact, contiguous by rectangular and as shape possible, having nearly possible apportion- as as as factors, but in no event than 10 or less more than 16. Insofar as reapportionment senatorial districts at the time of comply
shall not be altered unless there is a failure to
standards”.
with the above
(entitled
In counties with 13 or more
factors
to one
senators),
assigned
county,
or more
one senator is
to each
and the
assigned
assigned
balance of those
among
to those counties as a class are
equal proportions”.
them in accordance with the "method of
assigned
senators,
popula-
In counties which are
two or more
equal
nearly
possible
tion of the senatorial districts "shall be as
as
percent
percent”
but shall not be less than 75
the ideal
nor more than 125
district,
incorporated city
each
district "shall follow
township boundary
possible
compact,
lines to the extent
and shall be
contiguous,
nearly
shape
possible”.
and as
uniform in
complete
2, concerning
districting
apportion-
text of
§
Senate,
ment of the
is as follows:
"Senators, number, term.
"Sec. 2. The senate shall consist of 38 members to be elected from
single
governor
member districts at the same election as the
for four-
year
governor.
terms concurrent with the term of officeof the
districts, apportionment
"Senatorial
factors.
districting
purpose
electing
"In
the state for the
senators after
publication
population
the official
decennial
equal
of the total
count of each federal
census,
county
assigned apportionment
each
shall
factors
percentage
to the sum of its
of the state’s
as shown
regular
computed
last
federal decennial census
to the nearest
*11
percent multiplied by
percent-
one-one hundredth of one
four and its
age
computed
of the
land
state’s
area
to the nearest one-one hun-
percent.
dredth of one
"Apportionment rules.
arranging
districts,
"In
apportionment
the state into senatorial
governed by
following
commission shall be
rules:
"(1)
apportionment
Counties with 13 or more
factors shall be
proportion
entitled as a class to senators in the
that
the total
apportionment
apportion-
factors of such counties bear to the total
computed
ment factors of the state
to the nearest whole number.
county
senator,
After each
remaining
such
has been allocated one
senators to which this class of counties is entitled shall be distributed
among
the
equal proportions applied
such counties
of
method
apportionment
factors.
"(2)
having
Counties
less than 13
factors shall be
entitled
proportion
as a class to senators in the
the total
In re
op
Opinion
the Court
apportion-
apportionment factors of such counties bear to the total
computed
the state
to the nearest whole number.
ment factors of
Such counties shall thereafter
arranged
into senatorial
districts
land,
convenient,
compact,
contiguous by
rectangular
are
and
as
having
nearly
possible
apportion-
shape
possible,
in
ment
possible, existing
shall not be altered unless there is a failure to
standards.
as
and
as
as
factors,
in no event less than 10 or more than 16. Insofar as
but
reapportionment
districts at the time
senatorial
comply
with the above
"(3)
entitled to two or more senators shall be divided into
Counties
population
single
nearly equal
more than 125
districts. The
of such districts shall be
member
as
possible
percent
but shall not be less than 75
nor
as
percent
by dividing
number
a
determined
county by
population of the
the number of senators to which it is
incorporated city
township
shall follow
entitled. Each such district
possible
compact,
boundary
contigu-
lines to the extent
and shall be
ous,
shape
nearly
possible.”
in
and as
uniform
as
The House
purpose
districting
electing
the state for the
members of the
Representatives,
compact
House of
"districts shall consist of
and
contiguous by
territory
convenient
land”.
formula,
area,
taking
provides
A
also
into account land
for the
assignment
ing
representatives among
county
the counties. Each
hav-
population
population
a
of not less than
of the
of the state
0.7%
separate
area,
representative
a
constitutes
representatives
proportions”.
and the balance of the
assigned
equal
in
are
accordance with the "method of
representative
Counties
entitled more than one
shall
population
nearly
equal
be divided into districts with "as
as
as
possible” containing not
than
less
nor more than
of the
75%
125%
population
city
township
ideal
and such districts "shall follow
and
applicable
composed
compact
boundaries where
and shall be
contiguous territory
nearly square
shape
possible”.
as
as
representative
consisting
county,
A
area
of more than one
entitled
representative,
single-member
to more than one
is to be divided into
equal
possible
population, adhering
county
districts “as
as
lines”.
complete
concerning
districting
apportion-
text of
§
House,
ment of the
is as follows:
number,
"Representatives,
term; contiguity of districts.
representatives
"Sec. 3. The house of
shall consist of 110 members
two-year
single
apportioned
elected for
terms from
member districts
population
provided
on a basis of
in this article. The districts shall
compact
contiguous
territory
consist of
and convenient
land.
areas,
"Representative
single
multiple county.
county
population
"Each
which has
of not less than seven-tenths
percent
population
area. Each
of one
of the
of the state shall constitute a
separate representative
county having
than
less
seven-
percent
tenths of one
of the state shall be combined
*12
110
Opinion op the Court
*13
Legislative Apportionment
on
Commission
Reynolds
nevertheless
continued to function. After
Sims,
22,
and,
1964,
v
following
on June
the 1970
4, 1972,
census,
this
again
May
on
Court chose
of the
plans
between
offered
members
commis
plan
the
so chosen most
sion and declared
with "the constitutional
re
accurately
complied
quirements”
adoption by
and directed its
the com
.5
mission
proceedings
"The case is remanded for further
consistent with the
opinions
Reynolds
in our
in
v Sims and in the
views stated
other
relating
legislative apportionment
along
cases
to state
decided
with
Reynolds."
Stewart,
Reynolds
separate
who concurred in
on
Justices Clark and
grounds,
Michigan
they
judgment
stated that
"would affirm the
because the
legislative apportionment
system
clearly
a rational one
clearly
majority
and
dissented for the reasons
v Sims. Marshall v
(1964).
does not frustrate effective
rule.” Justice Harlan
dissenting opinion Reynolds
in his
in
stated
Hare,
561;
1912;
378 US
84 S Ct
However,
fundamental
questions concerning commission’s and this
appor
Court’s roles in the
tionment process
yet
have
to be addressed
this
Court. One justice
1964,6
justice
another
,7
expressed the view that
the commission and
1972
Legislature 1972,
(1972).
442;
State
387 Mich
Opinion the Court authority districting this Court’s is limited to ac prescribed to the rules in cording apportionment 4, 2-6, and that those art since rules are no §§ neither longer wholly valid commission nor this Court can act at all. While that view properly sub silentio when this Court ordered was rejected 1972, plans opinion in 1964 and no adoption of the Court has addressed or decided the question whether commission and this Court’s authority 4, under art 2-6 continues despite partial §§ Constitution, under the United invalidity, States apportionment rules set forth the 1963 on.8 Constituti Nor has the Court con definitively opinion sidered what are "the any constitu requirements”.9 tional 1972, actions in 1964 Court’s taken addressing
without
fun-
definitively considering
questions,
damental
are not precedentially
binding
for it
is well-established
in this
state that
"[a]
point
thus assumed without
consideration
is of
legislative
of state
districts must reflect mathematical
equality
population,
excluding
thus
other constitutional considera-
(see
3)
4,
2,
thereby casting
upon
tions
the constitutional
US
US
Const
art
§§
doubt
Howell,
validity
of their efforts. See Mahan v
315;
979;
(1973),Gaffney Cummings,
93 S Ct
Opinion
the Court
1, 11;
Duffie,
course not decided”. Allen
43 Mich
v
(1880); People
672,
Aaron,
NW 427
Mich
v
(1980).
722;
We summarize our conclusions as follows: duty 1963, 6, 1. It is this Court’s under Const art providing judicial 1,§ for the exercise of the power, requirements to determine what are the meaning this constitution and to define the requirements specific applications. those requirements” 2. The term "constitutional provisions concerning 4, means §§ of art 2-6 the number and terms of office of senators and representatives, establishing pro- commission, viding districting apportion- for the decennial and Legislature appor- ment of the in accordance with declaring tionment rules there stated and this 24, 1982, February establishing procedure The Court’s order of filing plans thereon, scheduling briefing for the of further and di separately rected that following briefs be and earlier filed on the questions: authority responsibility "a. Do the com- weighted mission and this Court survive invalidation of the land/ formulae, authority If responsibility "b. the commission’s and this Court’s thereby superseded, not require- are ments’ within the what are the 'constitutional 4, meaning of Const art 6?”§ *16 op Opinion the Court regard function with thereto which not Court’s are Equal of violative Protection Clause of the United States Constitution. of Equal
While Protection Clause the United Constitution, v Reynolds States as elucidated in Sims, supra, requires equality population of in districts, forming election the term "constitutional 4, 2-6, art requirements”, as used in not does §§ of Equal refer to Protection Clause the United Constitution, States the Equal Protection Clause of (Const 1963, Michigan 1, 2), Constitution art § other any provision Michigan of Constitu- tion. provisions
3. second and third para- graphs of art 2 and of the paragraph second § 4, 3, art establishing weighted land area/popula- § taking tion formulae into account land area as population (thereby well as apportioning to less populous larger areas a number of senators and representatives than would be apportioned thereto alone), based are invalid under Equal Protection Clause of the Con- United States Sims, Reynolds v stitution as elucidated and subsequent decisions the United Supreme States Court.
4. abstract, Standing alone and in the require- county, ments city township lines be observed districting apportionment, that election compact, districts be not violative are of the Equal Protection Clause of the United States Constitution as dis- long resulting tricts not do "range exceed the of allowable diver- gence” from the federal goal equality popula- tion. Howell, v 315;
5. It appears Mahan from US 979; (1973), S Ct 35 L range Ed 2d 320 of allowable divergence is at least 16.4%. 413 Mich Opinion the Court area/population weighted formulae, land
6. supra, by Reynolds Sims, and the v invalidated remaining apportionment inextricably 2-6, are not 4, §§ of art are rules interdependent and therefore *17 Similarly, function of the commis- the severable. sion, depends rules, indeed on those and the which itself, the in- are not severable from commission rules.11 validated provide responsibility for It is this Court’s
7. government by assuring continuity that the the of opportunity provided people lawfully to elect a the will be Legislature apportioned the elec- tion. drawing the of election
8. The Court directs compliant con- manner with federal districts in a requirements the consti- consistent with stitutional tutional redistricting resulting history state, and the of this apportionment plan shall stand and Legislature the the or the until people provide by and Governor plan.
law an alternative I posed questions parties by the The two this (ED Mich, parties Dodge v Counsel cited Austin for both have 1975, 4-70235), 181; 886; Docket aff'd US 96 S 46 L Ed 2d the Commission on No. Ct (1975), support proposition the that of weighted Legislative Apportionment land the survived the invalidation of area/population formulae. Austin, Dodge three-judge In v a federal court ruled that this Court recognized continuing validity had cluded therefrom that the of the and con- commission the from commission’s existence was severable by question the invalidated formulae. That had not decided this been Court. whether, question Michigan this as a before Court is matter law, weighted invalidity constitutional the formulae makes language establishing invalid the this Court’s the commission and regard properly role in was that All that court hold thereto. the federal could concept apportionment of this was not commission provisions question violative of the federal constitution. The whether Michigan by of the decision Constitution are severable cannot be foreclosed court, though of a federal even affirmed the United States Court, Supreme mate Michigan Supreme because the Court has ulti- responsibility determining question law. state Opinion op the Court severability Court stated stan- above — In deciding interrelated. whether dards —are authority commission and this Court’s under art partial 2-6 survive under invalidity, §§ Constitution, the districting United States rules, the Court apportionment obliged exam- ine the function of the commission in the wake of v Sims. This in turn requires Reynolds determine Court standards which the com- Reynolds v governed was before and mission after Sims.
II opinion declared, The 1972 this based v Reynolds Sims and sub- on its understanding sequent decisions of the Supreme United States Court, plan with the least *18 population differentials from the ideal was the one complied which most with the "constitutional re- quirements” of the 1963 Constitution.
The Court’s of perception federal constitutional standards would shortly prove to be incorrect.12 12 following summary The is a of decisions of the United States Supreme apportionment: Court on Carr, supra, Supreme In Baker v the United States Court consid- legislature unconstitutionally ered a claim that the Tennessee was malapportioned. involved a thought It had theretofore been such that a claim "political question” justiciable. and was not The Court distinguished prior "political question” involving as cases claims arising teeing every provision under guaran- the of the United States Constitution republican government. a state form of Because this brought Equal Clause, action was under the Protection the Court held policy pertinent Guaranty considerations to the Clause were not involved application proceedings and remanded the cause for further in the equal protection standards. adoption by people Constitution, After the the 1963 of the the Supreme Georgia’s United congressional States Court held that dis- tricting was provision unconstitutional because it the was violative of of the requiring United States Constitution that the members of the 413 Mich Opinion op the Court Howell, v year, Mahan in US following (1973), 2d 320 the United
315; 979; 35 L Ed 93 S Ct legisla- in state ruled Supreme States Court Legislature, the or other state apportionment, tive reapportion- with the function of body entrusted approved limits —the ing, may within from the depart maximum deviation 16.4% — to achieve equality in order goal population pre- such as rational, goals state legitimate other subdivisions political serving integrity state. "by people”. Representatives be Court ruled House of that "as chosen congressional nearly practicable in a is one man’s vote as Sanders, Wesberry v is to be worth as much as another’s”. election (1964). 1, 7-8; 526; 11 L 2d 481 376 US 84 S Ct Ed Sims, 533; 1362; Reynolds v 377 US 84 S Ct case of In the landmark Court, 15, (1964), Supreme June States L Ed 2d 506 the United 12 1964, legislative apportionment. The Court invalidated Alabama’s requires Equal that both houses of a Protection Clause held that basis, population legislature apportioned be on a state
bicameral permitted legitimate although if based on would be some deviations policy. state of a rational considerations incident to effectuation congressional appor- later, invalidating years the Missouri in Five nearly practicable’ tionment, 'as that "the Court declared good-faith requires effort to achieve make a that the State standard precise Reynolds Kirkpatrick v equality. v Sims”. See mathematical (1969). 1225; Preisler, 530-531; 22 L 2d 519 89 Ct Ed 394 US S (1973), Howell, 979; 315; S L Ed 2d 320 v 410 US 93 Ct In Mahan plan, Court, Virginia’s upholding reapportionment drew a in congressional legislative apportionment. and state between distinction While portionment, The constitutional tests are different reap- congressional in variance the sole criterion legislative plans greater flexibility. allowed state are judicial partly review is because Minor deviations from on different sections of the constitution. based equality may justified pursuit precise rational state when caused policy. 735; Cummings, Gaffney 93 S Ct later v 412 US A few months (1973), 2321; Ed Court held that the deviations 37 L 2d legislative not to re- were so small as Connecticut’s *19 quire any justification of state all. is a three-tiered review at There plans population legislative apportionment, the said. have Court Some (Gaffney), require justification to whatsoever variances so small as no require justifi- plans population large enough to variances some cation that have (Mahan), large plans population so and some have variances (Reynolds). they justified cannot be Apportionment In re Opinion of the Court
A opinion of the The 1972 Court declared that controlling legisla judgment "[t]he criterion for in involving controversies, tive bicam legislatures, equal protection state eral under the clauses of the Federal and state Constitutions is equality nearly practicable”. of as as Apportionment Legislature of 1972, 387 Mich — (1972). opinion 442, 453; 197 NW2d char Reynolds supra, Sims, acterized the in v statement may legitimately a that state desire to maintain integrity political of subdivisions as dictum. stringent equality popu Instead, it relied on the Kirkpatrick lation forth Preisler, criterion set in v (1969), 526; 394 US 89 Ct 1225; S L Ed 2d 519 rejected fragmenting where the political avoidance legitimate subdivisions reason for departing equality congressional from districts.
Although Supreme Court, the United States Reynolds, congres had noted difference between legislative districting, sional and state the 1972 opinion distinguish this Court declined to Kirk patrick ground, stating "[pjrudence on that problem would counsel avoidance” of the might presented by attempting to confine Kirk patrick congressional districting. analy "In end equality popula sis, mathematical exactitude re primary controlling tion is the standard. As competing plans 'equality between of with identical population’ may factors, attention then be fo upon compact cused other considerations such as shape, Legisla ness, etc.” In re added.) supra, (Emphasis 456.13 ture — give The refusal to credence what the 1972 13The Court also said: possible develop require-
"While it
not
detailed constitutional
*20
120
413 Mich 96
Opinion of the Court
v
Reynolds
Sims
can no
of
the dictum
Court called
Howell the United
In Mahan v
longer be justified.
that
the constitutional-
Court said
Supreme
States
"not
redistricting
plan was
legislative
of
ity
a state
that
by
stringent
the more
standards
judged
to be
Rockefeller,
542;
Kirkpatrick
Wells [v
US
(1969)]
1234;
applica-
22 L Ed 2d
make
89 S Ct
but
instead
reapportionment,
to congressional
ble
Rey-
test
in
protection
the
enunciated
equal
Rey-
to
in
nolds v Sims”
nolds,
Referring
its decision
holding
its
"we reaffirm
said
State
requires
'the
Protection Clause
that a
Equal
to
good
honest and
faith effort
construct
make an
districts,
legislature,
nearly
of its
as
in both houses
* * *
long
equal
practicable
as is
population
of
[s]o
a strict
stan-
divergences
as
from
inci-
legitimate
dard
considerations
are based
policy,
dent
the effectuation of
rational
state
equal-population
princi-
some deviations
from
with
ple
permissible
respect
are constitutionally
of the
apportionment
of seats
either
both
” Ma-
legislature.’
two
of a bicameral
state
houses
Howell, supra,
han v
nance of lines integrity of subdivision of local state government units is a rational policy. resulting It said that while the 16-odd percent approach maximum deviation well "may limits”, apportionment tolerable under review not equality had "sacrificed substantial justifiable deviations”.
The reasoning of the 1972 of this Court opinion ments, overriding question requirement of there can be no 'districts, legislature, nearly equal popula in both houses of its as practicable’.” Apportionment Legislature 1972, tion as In re — Mich 458. op Opinion the Court dislodged has thus been United States Kirkpatrick Supreme Court. and the companion Wells, case which dealt with congressional dis- tricting, do not legislative control state districting. reject clearly
We wrong argument Court, having this relied on its understanding Kirkpatrick in the case, must *21 adhere to that disposition construction in the of opinion this case. The 1972 expressly sought to elucidate and follow the decisions of the United States Supreme Court. Subsequent United States Supreme reject decisions reading the adopted this Court 1972. Equal
The Protection does Clause not require the states altogether subordinate a of policy preserving the boundary lines of local units of government to person-one the one vote principle. It can no longer be said that a which achieves absolute population equality necessarily more compliant with the federal constitution than one which takes into account other justifiable state goals. It would be a misconstruction of the Equal Protection Court, Clause for this in the of name Kirkpatrick, to fail implement to a state of policy preserving the boundary of of lines local units government. It is our duty under Supremacy Clause to fully implement, but not to extend be- ambit, yond its the Equal Protection Clause.
B opinion failed distinguish between requirements of. the federal and state constitu- tions.
We have considered whether the term "constitu- Mich 96 Opinion the Court (i) provisions requirements” means tional (ii) provisions only Michigan Constitution, (iii) Michigan Constitution, 4, §§2-6 of the art provisions provisions (iv) Constitution, or the United States constitutions. of both term "constitutional re- conclude that We requirements quirements” forth in set means the Michigan Constitution which 4, §§ 2-6 of art Equal Protection Clause of are not violative Constitution. the United States pertinent language 4, § 6 of art is: proceed to shall district "The commission representatives apportion according the senate and house provisions of this constitution.” supplied.) (Emphasis ¶ 5. agree majority cannot
If a of the commission proposed plan plan may plan, member submit each this Court which "shall determine which complies accurately with constitutional most *22 (emphasis supplied) requirements” direct and shall adopt it. ¶ 7. that the commission Upon any application not of elector filed later plan, publication days the than after final of plan adopted by may any Court this the commission "and shall remand such the comply review final
plan to it fails to for further action if commission requirements the constitu- with this (Emphasis supplied.) ¶ tion”. 8. foregoing first and third of the formulations
expressly speak of "this” com- constitution. charged is first mission under formulation districting according apportioning with ("this”) provisions Michigan Constitution. In Opinion of the Court obligated This is under the third formula- tion to remand to the if it fails commission requirements comply ("this”) Michigan with the of the light, it Constitution. that was not require deciding Court, intended to this in which complied accurately most with "the” constitu- requirements, tional consider federal well as as requirements then, state constitutional petition of an obliged to ¶ § 6, elector under 8 of to be
remand to commission for failure to ("this”) Michigan comply with the Constitution’s requirements. contemplate
The 1963 Constitution did not that apportion the commission would district and Legislature requirements in accordance with the concept the United States Constitution and the legislative equal popula- that districts should be contemplated popula- tion. Rather it substantial inequality resulting tion between the districts weighted according from to the area/population land formulae set forth in art 2-6. §§ acknowledge opinion
We the 1972 offers support provisions argument in dictum14 for the 1, 2 §
of art
of the 1963 Constitution are
requirements”
thereby
"constitutional
and that
incorporated,
require-
there was
as a constitutional
purposes
legislative apportion-
ment
Equal
ment, this state’s
which
Protection Clause
upon
elaborates
person
the Fourteenth
"no
Amendment:
protection
equal
shall be denied the
person
any
enjoy-
laws; nor shall
denied
controlling
judgment
legislative apportion
"The
criterion for
controversies,
involving
legislatures,
ment
bicameral state
under the
equal protection clauses of the Federal
state
Constitutions
equality
nearly
practicable.”
supplied.)
(Emphasis
as
*23
Legislature 1972,
In re
of
ment of his civil thereof because in the exercise against nated color, race, origin.” or national religion, art however, be than that could clearer Nothing, dis- 4, and house 2-6 that senatorial provides §§ Land equal population. in tricts were not be into to be taken population as was area well lines were to be Election district consideration. regard lines without along county drawn equal population might in more whether districts methodology. Considera- achieved different preservation the of other equality tions of in rights, recognized and articulated constitutional Constitution, 1, were subordi- art 2 of § 2-6, 4, forth art the criteria set nated to §§ Legislature was insofar as concerned. 4, art 2-6 was discrimina- touchstone of §§
tion; populated in favor of less discrimination Legis- against populated areas the more areas. The to the apportioned according lature to be was 4, regard 2-6 criteria stated art without §§ goals achieving avoidance equality of discrimination.
In adopting plans, the 1964 and 1972 this Court proceeding premise erred in on the the least legislative differential between districts primary requirement” was "constitutional 4, Michigan meaning within the of art 2-6 of §§ concept Constitution. While the core Sims, Reynolds v emanating concept from Equal Protection United Con- Clause States stitution, 2-6. requirement it is not a of art §§ requirements” term "the constitutional *24 In re op Opinion the Court requirements 4, §§ of art 2-6 means of the 1963 Constitution, which are not of the violative United Constitution, States but does not include the re- quirements of the United States Constitution.
Ill turn to We a consideration of what are the 4, §§ set criteria forth in art 2-6.
A apportionment factors and rules which take population, into account land area as well as be- they produce divergence population cause in from goal exceeding equality range allowa- divergence ble under the United States Constitu- longer regarded tion, can no be as effectual consti- requirements. tutional
The other criteria set forth in the 1963 Constitu- (i) county, township city boundary tion are (ii) equality range lines, in within a (iii) preservation existing ideal, of the 75%-125% (iv) contiguity, districts, senatorial convenience, compactness, rectangularity, uniformity squareness. building
The basic blocks of the rules are the counties. The and the House Senate organized contiguous, single-member are to be into county districts drawn on lines. (those districts,
House in all counties entitled to repre- one, less sentative) one, than or to more than one compact are to consist of and convenient territory contiguous by land..
Senate districts in counties entitled to less than Mich Opinion op the Court compact, convenient, senator, are one shape rectangular
contiguous in as land, and as existing preserving at possible, districts senatorial reapportionment would to do so unless the time comply the other with the failure result standards. than one senator or to more In counties entitled (i)
representative, districts shall House and Senate possible population, nearly equal not be as ideal, nor more than than less 75% 125% *25 (ii) township boundary city and follow and shall Senate) (for possible” the and the lines "to extent (iii) (for House), applicable” and shall the "where contiguous territory composed compact and of Senate) (for "square” nearly and "uniform” as House) (for possible”. shape in "as
B foregoing persuaded criteria, that all areWe divergence range excepting only of the 75%-125% express legitimate population, rational and for policies divergence justify from the which state population equality, goal of strict and federal consistently implemented which, therefore, can be Equal with the Protection Clause. following county,
Mahan v Howell holds that justifi- township city boundary and lines a valid is divergence population equality. cation for from "political integrity of of subdi- Preservation possible” visions, as and the maintenance insofar "compact Reynolds said, v of were in districts” goals.15 legitimate Sims to be state While may legitimately integrity "A of State desire to maintain the subdivisions, political possible, provide for insofar as various Opinion of the Court dictum, that, was we conclude absent a statement different statement achieving Court, elec- compact possible tion districts which are as legitimate is a goal. Rectangularity, uniformity state squareness shape express essentially concept goals.16 are also same thus valid state implicit It is in the decisions United Supreme legiti- may States that a state opt contiguous mately for rather than floterial districts.
C apportioning authority justified adopt- An is ing degree divergence only population from equality goals. essential to achieve the state Once flexibility Accordingly, achieved, the at is an end. divergence goal from federal equality permitted only necessary to the extent permit goals achievement of the state observ- ing boundary govern- lines of local units compactness. ment and range divergence necessary to achieve the (i) goals separately
state shall be determined *26 apportioning the state as a whole when senators (ii) representatives and counties, to the for each county, separately, apportioning when senators (iii) representatives county, within a for city township each entitled to more than one compact contiguous territory legislative designing districts of in a may scheme. Valid considerations underlie such aims. districting, regard any political Indiscriminate or open without subdivision lines, boundary or may natural historical more an be little than partisan gerrymandering. (Emphasis supplied.) invitation to Reynolds Sims, supra, v 578-579. 16 delegates This was the view of to the Constitutional Convention. Record, 1961, 2111, 2112, 2See Official pp Constitutional Convention 2151. 96 413 Mich
128 op Opinion the Court appor- separately, representative, when or senator representatives tioning within a senators and township city. "range of the allowable have considered
We
goal
population
divergence”
from the federal
Following
approval
equality.
Mahan
of a diver-
the
generally
gence
16.4%,
have
courts
concluded
divergence.17
range
of allowable
the
16.4%
17
Howell,
supra,
Supreme
the United States
In Mahan v
population equality
from exact
that a
maximum deviation
held
16.4%
" 'legitimate
justified
it was the result of
considerations
because
was
policy’. Reynolds
a
state
v
the effectuation of
Court in Mahan
rational
incident to
said,
may
percentage
well
"While this
Sims”: The
limits,
approach
329.
26.48%
it
410
we do not believe
exceeds them.”
US
tolerable
plan
Supreme
previously
a
with a
Court had
invalidated
deviation,
Kilgar
regarding
120;
a
to be intolerable.
such deviation
(1967).
820;
Hill,
D Analysis 4, of the §§ structure of art 2-6 and of the record of the Constitutional Convention indi- hierarchy cates that there is a of the criteria: (a) required single-member All districts are to be contiguous; may districts and no land be detached except or isolated from the rest of the district necessary body where because of a of water.
(b) organizing principle apportion- process, House, ment both Senate and was county representatives lines.18Senators and were Amos, supra (dictum); Assembly Sims v Deukmejian, supra. of State of California v approved fact "[T]he 15% variation from the norm 10% bearing in validity one state has little on the aof similar variation in Adams, 440, 445; 569; another v state.” Swann 385 US 87 S Ct 17 L (1967). Ed 2d 501 18Michigan’s principle county township adherence to the preserved lines should be in the creation of election districts dates 13, Territory 1787, back to July the formation the Northwest on every Michigan and has adopted been voiced in constitution since that date. 1787, 9, setting up The Northwest Ordinance of § unicameral legislature, provided: "So soon as there shall be five thousand free male inhabitants age district, upon giving proof governor, full in the they thereof to the authority, place, representatives shall receive with time and to elect townships, represent from their general counties or them the assembly”. preference This Michigan’s was also voiced in first Constitution up legislature. respect which set a bicameral With it the House provided: was representatives annually Monday “The shall be chosen on the first November, following day, by the electors of the several counties or districts into which the State shall be for that divided purpose. organized county Each shall be entitled to at least one representative; county organized but no hereafter shall be entitled separate representative a equal until it shall have attained a representation to the ratio of hereafter established.” Const 4, art. 4.§ provision respecting explicit the Senate was even more in its principle county representation. provided: endorsement It 413 Mich *28 Opinion of the Court divided, apportionment, a into at each new be "The State shall districts, eight senatorial than not than four nor more number of less contiguous territory; district composed that each always of so to be shall be: and no nearly may annually, as equal as an of senators elect number of such county the districts." shall be divided in formation 1835, 4, 6. art § Const to in its similar the first constitution The Constitution of 1850 was provided: representation. It of Senate treatment thirty-two be shall be members. Senators shall consist of "The Senate shall single years by districts. Such districts and elected for two thirty-two inclusive; shall choose each of which from one to numbered of county the formation senate shall be divided in one senator. No districts, except equitably to two or county entitled such shall be 1850, 4, 2.§ Const art
more senators." however, emphasis only provision, its on not retained House The county representation emphasized time the for the first desirabil- but township city respecting sovereign integrity bounda- ity of and of the ries: be, contain, nearly may representative as as an district shall "Each * * * of and equal and shall consist convenient number of inhabitants township city contiguous territory. no or shall be divided the But township city any representative or of a district. When formation repre- population to more than one which entitles it shall contain a sentative, ticket, general city by township the or shall elect then such county representatives is Each hereaf- to which it entitled. number of thereto, organized, territory may shall be such as be attached ter with popula- separate representative, it has attained a to a when entitled 1850, representation." equal moiety Const art to a of the ratio of tion 4, §3. 1908, provisions of of which re-enacted the Both the Constitution reap- Constitution, subsequent amendment of these the 1850 portionment provisions by and the 1952, Michigan’s people in the reaffirmed counties, townships, preservation cities as to the of and commitment the basic units Legislature. representation As of of in the electoral 1962, pertinent part as amended read in the 1908 Constitution follows: be "The 34 members. Senators shall elected senate shall consist of single years 2 Such shall be numbered for from to boundary and districts. districts 34, inclusive, territory 1 the within the shall consist of existing adoption the at of of lines of counties the time the * * 5, 1908, *." Const art 2.§ this amendment representatives "The house of shall consist of not more than 110 * * * county, group forming represen- of members. Each or counties district, separate representative to it tative shall be entitled when population equal per township of the ratio of has attained a cent ** Provided, city representation divided in no shall be *: That district, representative except the of a that when formation may city composed territory county, it in more than 1 be a divided at is 1908, 5, county § the line or lines”. Const art 3. Opinion op the apportioned only to with the to be counties result county lines could never broken.19 4, 3, supra, See fn for the text of art and 3. §§ priority delegates overarching to the constitutional units, preservation county while dis- convention attached upon product cernible final of their delibera- an examination of the tions, on the floor the conven- underscored statements made tion. majority report This was stated in the Commit- commitment Legislative Organization, responsible tee on ing the committee draft- reapportionment provisions about the Senate of the 1963 Constitution. In said, speaking plan, majority report * * * representation per "The cent bases per by calculating percentage 20 the state’s by cent on This is area. achieved population living county, multiplying each number adding percentage county of the total area in the figure. resulting figure factor, county’s apportionment that and the is the *29 major creating county building in unit becomes the block Record, 1961, p senate 2 Official districts.” Constitutional Convention 2036. concerned, report majority Insofar as the House was the said: county “All boundary house will districts follow lines. This is clearly recommended in order to assure citizens traditionally recognized voting established the and the identifiable and districts, long and to conform to the organization patterns county many groups, including of political parties. Many county districting, states follow lines in weight continuing testimony overwhelmingly of the heard committee practice Michigan.” Record, p favored 2036. this in 2 Official paramount importance county principle of the line was also Dehnke, length by delegate discussed at himself a member of the Legislative Organization, Committee on when he the took floor to report. majority defend the recognized “Now it proceed- has early been clear became in our —it ings agreed delegates before the committee—that the from both sides were permit cutting that it not would be advisable to the of counties forming legislative in districts in either house. Practical considera- groups tions convinced both that would this not be advisable and possibly Counties, course, not should are not be done if it could be avoided. of sovereign anyone I entities. don’t of know claimed who that they But, historically, were. our counties have been for formed the state, convenience govern- of the to facilitate the administration of They may agents state, ment. said to be be the of the a as convenient for the unit administration of state laws and the of maintenance law order; judicial administration, administration, and for for welfare for * * * deeds, keeping probates Nothing records of and so on. is more however, proved, integrity that than the of the was consid- counties importance equality of population.” ered more than the of 2 Official Record, p 2099. account, When comments such as these are taken into there can be 413 Mich Opinion op the Court (c) more than one senator entitled to In counties principle that was the same or representative, the of sena- allocation adopted people the counties was among the representatives tors and repre- and of senators adopted for the allocation It first that is stated county. within sentatives township boundary follow or city the shall districts Senate) (for and possible” the lines "to the extent second, (for House); and the applicable” "where compact, contigu- be districts shall senatorial shape in as possible "uniform” nearly ous and as compact be representative districts shall and that in as nearly shape as contiguous "square” and and possible.__ principle integrity county lines was a little to doubt that the room prime importance of the 1963 Constitution. to framers county-line require- primacy under the Constitution of precedence other criteria of it takes over the ment such (in they township preserving city and those few instances where lines lines), uniformity squareness. compactness, county and cross representative are entitled to less than one senator Counties required in with the combined into election districts accordance organization only less 3 for stated in and §§ criteria convenience, (i) Senate, compactness, populous counties: existing contiguity, rectangularity districts; preservation and senatorial (ii) convenience, House, compactness, as to the contiguity. counties, populous organization these the first less is, controlling unless limitation violating more again, county that no line shall be broken criterion required comply order to with the federal constitutional range divergence. regarding If without of allowable organize possible that limitation it were counties criteria, way, controlling importance, one in order than *30 (i) existing of
would of at the time be observance senatorial districts (it existing appears preservation that of senatorial regarded higher priority compactness, having districts was see Constitutional as than a Pollock, delegate the comments K. a to the of Professor James (ii). Convention, 2092-2093), Record, pp and Official rectangularity: (i) existing may possible It not to senatorial districts be observe area/population weighted the formu- because invalidation land may less lae populous have so the of allocated to the reduced number seats implemented. areas that be this criterion cannot (ii) terms, convenience, contiguity rectangu- compactness, and The larity, expressive concept. appear complementary, to the same be of See fn 16. Opinion the of the population it is stated that the of While as within nearly equal possible districts shall be as range range a was divergence, that 75%-125% adopted leeway as to provide permit so to sufficient along organization of all election districts city the lines, township thereby indicating and boundary following goal city township that and bound- goal over the ary priority lines takes equality.20 township criteria that and city boundary
lines be and compact, followed that the districts be uniform square and do not conflict. are They rather and complementary, essentially reflect concept. are, same in general, Cities made up all parts or of townships which are generally perfect squares. thus a Many compact- cities have certain squareness ness and or uniformity because they follow former lines.21 township persuaded We are following city township that and takes prece- lines ing Wayne, the township boundaries, tion, Constitutional Convention before extent combine their votes mandering. number of political districts be and other research. nearly equal the Committee different districting the 21Noteworthy "[I]n followed is senatorial districts to draw This rationale area, and you provisions possible our Oakland, party guide this was substantiated (ii) precincts start committee, organized along county, maps, being not conduct of the election facilitate the on organizations, (i) possible you House. The framers did not is that breaking city Muskegon, qualified by Organization, Legislative of the 1963 Constitution enable voters districting was INow submit to more we found that the 75-125 was a those of us who stated or special ballots, 1961, p as fair as we know effectively requirement then or the House than the Senate. The "to the "to the extent by delegate house, any living only 2115. township (iv) city if you to elect a have them, limit in a worked you testimony (iii) that once and W. F. on the convention floor: particular wish to tend to lines.” Official possible” requiring whether city put township diligently how intend to Hanna, representative potential of election officials preserve existing floor you get stay by reducing practical in the rules for you apply township community that election counties like a member of lines or a bottom within provide for attempt- them as Record, limita- gerry- from lines it to city- *31 413 Mich op
Opinion the Court districting compactness of coun- in dence over represen- or to than one senator entitled more ties tative.22
(d)
only
for cities and town-
criteria stated
The
legislator
ships
than one
are
to more
entitled
possible
nearly
equality,
population
a
as
within
compactness
range
ideal, and
of
of the
75%-125%
possible”.
squareness)
(uniformity
extent
to "the
or
compact-
equality
goals
population
and
of
The
range
may
readily
of
The
harmonized.
75%-
ness
be
drawing
to
election
facilitate
was selected
125%
township
city
lines, not to
on
and
lines
district
compactness.
greater
facilitate
gerry-
goal
compactness
to avoid
seeks
Districting
mandering
not an end in itself.
and is
equality "may
solely
population
little
to
be
achieve
partisan gerry-
open
than an
invitation
more
mandering”. Reynolds
supra,
Sims,
Having govern, delineated the standards that it necessary is now to stand back and look at the ourselves whether this is the commission apportionment ask people
schema the for? voted A guided by clearly A commission standards delin- eated in advance and which are enforced is a body different than a commission left to its own only devices restrained federal constitutional requirements.
While the commission could be made to work Legislature application and the could, in the reapportioned, rules, those be redistricted and necessarily operate differently those rules than they weighted area/popula- would if have land tion formulae were valid. living populous
Persons areas, less who had a protected position under those formulae which particular assured a number seats and an en- Mich Opinion of the Court longer no have Legislature, in the larged voice that were denied advantage. they To be sure decision, Reynolds but Reynolds advantage remaining apportion- require not does to the without a return applied ment rules Legisla- for a decision on how political process apportioned. ture shall be concerning the case law parties have cited statutes, not art 2-6 is but severability §§ devel- apply not case law This Court will statute. concerning of controversies oped the resolution presented con- invalidity where issue statutory invalidity. cerns constitutional single line item of the is this a case of Nor federal being held violative constitution *33 constitution, example, provision a for specific article or one innumerable finance executive, legislative judicial delegations power. to the heart of invalidity goes
The here declared a political process democracy. constitutional have not historically Constitutional democracies equal but organized separate been with always A constitutional judicial executive branches. exist, however, legis- a cannot without democracy represents people, popu- lature that freely upon a larly process elected in accordance with agreed. which they have is.power political power issue here — —in has the Legislature constitutional democracy. ultimate make the laws which the authority by governed. by are in the means people Any change In re op Opinion the Court Legislature which the members of the are chosen is a fundamental matter. Supreme
The United States Court has declared aspects by that some of the method chosen Michigan people of are violative the federal having constitution. That Court declared, so question responsibility before us is what is the this Court. say can
No one whether the 1963 Constitution adopted apportion- would have been without an apportionment ment commission and the rules of anyone say 4, §§ art 2-6. Nor can whether adopted Constitution would have been with the apportionment rules which result reason of the partial invalidity under the federal constitution of adopted. the rules predict anyone
Nor can what the voters would presented question severability if do with the at a general might election. Some voters view with gov- favor an commission that is principles, erned neutral advance, known in reapportions and which redistricts and the state in largely opportu- mechanical manner with little nity partisan maneuvering. many states, egregious gerrymandering practiced by most Legislature computers with the aid of to achieve pass results which will muster under federal stan- yet partisan dards favor the interests of the domi- *34 political nant faction. people may prefer to have the re- matter political process they may prefer
turned to the plans pursuant guidelines drawn to the which are opinion. delineated this 413 Mich op Opinion the Court speculate on a matter for this
It is not importance. a decision This is enormous of such people should make. which the reappor- 1972, in 1964 decisions This Court’s choosing plan tioning Legislature by submit- legiti- by partisan interests, have lent some ted system apportionment macy of which the an approved. wholly people If this Court not have provisions apportionment not invalidate does many people entirety,23 2-6, 4, in their §§ of art simply making Court, may do this conclude that imprimatur situation, its has lent a doubtful with bandaged the burden is formulae and that to the changed. it would seek to have on those who imple- has twice this Court which The formulae approved. people What not what the mented are they they they approved have. And what cannot approve. have, we cannot political to the should be returned The matter highlights process rather than in a manner which people should make. hides the choices accordingly appor- concluded that We have provisions 4, §§ 2-6, tionment of art cannot be weighted area/popula- maintained. When tion land apportionment appor- fell, formulae all the inextricably they are tionment rules fell because related. appor-
The commission survive without cannot provides only appor- tionment rules. Article 4 according Michigan tionment in the rules stated only Court, Constitution. under article can This provisions establishing representa number senators tives, office, not terms and time of elections are provisions are severable.
Opinion op the Court order the commission to with comply Michigan constitutional It standards. has no basis for choos- ing between alternative plans Michigan without constitutional criteria. The notion people the of this state confided to an apportionment commis- apportionment sion without rules absolute discre- tion reapportion Legislature the and thereby political power reallocate in this state limited only by human and no federal ingenuity constitu- tional computer standard that a cannot circum- vent is unthinkable.
We conclude that the rules are not and severable the commission therefore also is not severable.24
B The power to redistrict and reapportion the 24 majority rejected contrary A of the Court has the view that: (a) requirements” concerning county, city The "constitutional and lines, township preserve autonomy government which the of local subdivisions, compactness, designed prevent gerrymandering, and part political compromise weighted were not land of the reflected in the area/population They separate requirements formulae. are carry provisions concepts which forward which extend back over years through from the Constitution of 1850 the Constitution of invalidity weighted and the 1952 amendment thereto. The of the area/population land formulae under the United States Constitution continuing viability does not separate requirements affect the of those they accordingly are severable. (b) requirements guide The severable constitutional the commission performance in plan determining the of its duties and this Court in which accurately, finally plan, most adopted complies or whether a requirements. with the constitutional Neither elimination of land apportioning area as the counties nor as a township representatives among a factor in senators and application range divergence of allowable drawing along county, city limitation in election districts changes enlarges lines the commission’s function or its discretion, nor deciding does it affect this Court’s function in which plan with accurately, finally adopted plan, complies most or whether a requirements. provisions regarding the constitutional accordingly commission invalidity are severable and survive the weighted area/population land formulae. 413 Mich Opinion people, people.
Legislature remains with practi- power, only as a however, exercise that can amending which, constitution, matter, cal unless acceptable consuming process.25 Legislature proposes an amendment people, time- is a difficult and meantime, there must require-
In the *36 Legislature and federal constitutional be a ments must be observed. deciding responsibility in
It is this Court’s among question severability and choose to consider continuing governance of the alternatives for the this state. people recognize that cannot immedi- We preference. ately must indicate their This Court redistricting provide for the Legislature compliance federal consti- the tutional sistent The with
requirements and in a manner most con- history the constitutional of this state. with redistricting apportionment plan result- ing from this Court’s determination will stand people changed by act, it until the or is collec- gov- tive action of the other two branches of this persons composed ernment, who are the most representatives people. immediate
C Apart population area, from and land we see history the constitutional of this state dominant contiguous, single-member commitments tricts drawn units of dis- along boundary lines of local government which, within those limita- compact tions, are as as feasible. accordingly
We direct that election districts process time-consuming. The initiative is also difficult and In re Opinion of the Court following drawn in accordance with the shall be criteria:
(a) Senate and House election district lines shall preserve county lines with the least cost principle equality federal between election districts consistent with the maximum preservation county exceeding lines and without range divergence of allowable under the fed- which, eral constitution Supreme until the United States otherwise, Court declares shall be (91.8%-108.2%).26 deemed to be 16.4% necessary county lines, Where it to break range because otherwise the of allowable diver- gence exceeded, would be there shall be shifted the townships necessary fewest cities to reduce the population divergence sufficiently bring it range divergence. within the of allowable *37 range Because of the narrowness of the of allow- divergence, anticipate only able we one organize breaking will the counties with the least county of lines.
(b) county drawn, After the lines are the election district lines within those counties to which there apportioned represen- more than one senator or city township tative shall be drawn on and lines principle with the least cost to the federal of equality population between election districts preservation city consistent with the maximum hard and fast rule was laid down: another State.” Swann v "[T]he one State has little imposing We do not read the decisions of the United States fact that a an absolute standard. Its 10% bearing Adams, or 15% 385 US variation from validity opinions indicate rather that no the norm is a similar variation (1967). Supreme approved 413 Mich op Opinion the Court exceeding township lines and without and divergence. range of allowable city township necessary it is to break or Where range lines, otherwise the of allowable because divergence exceeded, there would be shall be people necessary to achieve shifted the number of population equality the two election dis- between affected the shift. tricts (c) township city a or to which there is Within representa- apportioned or more than one senator tive, election district lines shall be drawn to compactness possible within achieve the maximum equal- range of absolute 98%-102% ity township.27 city between districts within that
D appoints Apol, The Court Bernard J. former supervise drawing elections, director of approval submission to this Court for tricting aof redis- apportionment plan in accordance profes- above, with C with the assistance of the Secretary sional staff and facilities office. of State’s Upon receipt plan, the Court will hold public hearing ordering adopted. before it to be
E Legislature may, by approved by a statute the Governor with immediate effect at least four preceding filing nominating weeks date for petitions August primary, for the redistrict reapportion Legislature in a manner con- sistent with federal and state constitutional re- *38 plans 22, 1982, by We have considered the filed March members longer of the commission. The commission is no viable. Apportionment — 1982 of March
Order redistricting and statutory Such a quirements. supersede plan shall plan reapportionment with C above. in accordance to be drawn directed Williams, C.J., Kavanagh, and Coleman, Moody, Jr., Ryan, and Blair Fitzgerald, Levin, JJ., concurred.
Order
Reporter.
25, 1982. —
March
Entered
Court,
pro-
to this
having
matter
come
This
Constitution,
4, 6, by
art
advice
in the 1963
vided
§
Legisla-
the Commission on
secretary
from
could not
the commission
tive
apportioning
and
districting
for
agree upon
filing
and
of such
Michigan Legislature
commission,
of the
and
plans
members
proposed
heard on the issue
having been
argument
4,
2-6,
1963,
it is
Const
art
constitutionality
§§
districting
appor-
hereby adjudged
4,
unconstitu-
of art
2-6 are
provisions
tionment
§§
represen-
and 110
tional and that
the 38 senators
respec-
in
2 and 3
provided
tatives
for
art
§§
single-
contiguous
from
shall be elected.
tively,
ap-
districting
pursuant
member districts
follows.
portionment plans drawn- as
Elections,
Director of
Apol,
Bernard J.
former
and submission
appointed
supervise
drawing
redis-
legislative
of a
approval
to this Court
plan in accordance
tricting
opin-
with the instructions
set forth
the Court’s
shall
of State
Secretary
ion
this matter. The
and facili-
all
technical
services
provide
necessary
accomplish
purpose.
ties to
this
to communicate
Apol
Bernard J.
is instructed
*39
immediate effect and is approved by the Governor 4, 1982, on or before May in order preserve established election schedule for this year, redis- trict and reapportion the Legislature a manner consistent with federal and state constitutional requirements. enacted, If such legislation is Court will review it sua sponte forthwith announce, promptly order, it whether is consis- tent with federal and state constitutional require- ments. If such legislation is found to be so consis- tent it govern will legislative elections due this year subsequently accordance with the order to be issued by this Court. If no such legisla- enacted, tion is the plan legislative redistrict- ing drawn pursuant to this Court’s order govern will the elections to be held this year. ordering Before into effect In re — 1982 April Orders public this Court’s order pursuant drawn held. hearing will be
Order Reporter. 30, 1982. — April Entered Court, rehearing order of the a motion for On and, motion, prior to decision on the considered argument parties the Court will hear oral Wednesday, May on the matter at a.m. on *40 1982.
Order Reporter. Entered April 30, 1982. — Redistricting for plans both the Senate and Michigan Representatives House having approval been submitted to this Court for appointee, Apol, pursu- the Court’s Bernard J. opinion ant to this Court’s in this matter issued ordered, March it 25, 1982, hereby pursuant is also provision in the opinion, public said that hearing Supreme shall be held Court hear- room, ing Lansing, commencing at 1 Michigan, p.m. on Wednesday, May 1982. hearing
This question: limited to the "Do plans which have been submitted to the Court for approval by Bernard J. adhere to the rules Apol and standards set forth in opinion?” the Court’s
All persons
addressing
interested
on
question
for
may
request
address a written
purpose
to the clerk of this Court. If it is not
otherwise
possible to
all such re-
accommodate
quests, preference
given
will be
who have
those
given some
requests
indication in their
of what
Order of presentation sug- would be. It is of their content requests telephone gested that all such contain a may a re- contact the clerk at which number par- request questor for and confirm whether ticipation can be accommodated.
Order May 13, Reporter. Entered 1982. — opinion matter, In this the Court’s was issued judgment and the order thereon entered on March judgment provided, 25, 1982. The Court’s order Legislature alia, could, inter that the a statute approved by with immediate effect which was May 4, 1982, Governor on or before redistrict and reapportion Legislature in a manner consis- require- tent with federal and state constitutional ments. No statute was enacted. plans redistricting therefore,
Now for the reapportionment Michigan Legislature, of supervision Apol, drawn under the of Bernard J. having Elections, former Director of been submit- approval April 27, 1982, ted to the Court for the Senate and on *41 April 29, 1982, for the House Representatives, public hearing, open and a to all persons, having May 5, interested been held on question plans 1982, on the of whether said ad- hered to the rules and standards set forth in this opinion, provided Court’s all as in for this Court’s judgment order, this Court Bernard J. directed Apol plans by to reconsider the submitted him on April particularly light 29, 27 and in com- public hearing May 5, 1982, ments made at the on and the written materials submitted in lieu of or support presentations, upon in of oral and such any reconsideration to recommend to the Court 147 May 13 Order all plans and modifications to the submitted by 29, April him on 27 and which he considered would make the said plans compliant more with the rules and standards set forth in the Court’s opinion. having
Several modifications been recommended Court, by Apol Bernard J. and by considered he prepare was directed to them in proper form by plans inclusion substitution submit- for approval ted on April Having and 29.- re- ceived those modifications in appropriate form on 12, 1982, (1) it May hereby is further ordered that the clerk this Court shall treat those modifica- any public record, tions as ordinary and make their contents accessible to any and all interested (2) persons; any and all interested persons clerk, file may 19, with until 12 noon on May (a 1982, written arguments signed original and 8 copies) attempting show that the modifications should not be accepted ground on they do not cause the plans April submitted on compliant be more with the rules and standards set forth in opinion. this Court’s
After considering all written submissions filed with the pursuant clerk order, to this all events by 1982, May 21, noon on Court will this to be cause delivered to the office of the Secretary of State an order directing publish that he provided law, and hold legislative elections for this year with, in accordance plans submit- ted to this Court by Bernard J. Apol April 29, 1982, as amended by the modifications thereto submitted to this Court him on May 1982. If the Court persuaded by submissions pursuant filed to this any order that of the modifi- cations submitted to this Court by Apol Bernard J. *42 Mich 96 413
148 May Order of implemented, May 1982, 12, not be should May 21, 1982, 12 noon on to be issued order so indicate. will filing for the that the date
It further ordered: filing nominating payment petitions fees of or of representa- and state state senator the office of for tive, nominating petitions filing for for of and for congress, representative the these offices of office 15, only, extended until June shall be p.m.; 1982, at 4 may, Appeals cases as such Court of That the filing appropriate, for the extend date it deems filing nominating petitions payment fees or county June until commissioner the office of p.m.;
15, 1982, 4at nominating peti- filing of the date for the That county delegate con- to the tions for the office 1982, 8, at extended until June vention shall be p.m.; of a candidate the date for the withdrawal
That paid filing nominating petitions or who has filed at fees for office to be nominated an primary shall extended until June election p.m.; 1982, at 4 only year primary for the
That the election August any 10, 1982; refer- be held on shall primary in nomi- ence to the date of the election nating petitions filed heretofore or hereafter identity or in or affidavits circulated candidacy affidavits filed shall be heretofore or hereafter primary held to mean the to be construed election August 10, 1982; upon may Secretary authorize,
That the of State *43 May Order 21 request by city township written a election precinct commission, a division of which contains portions of more than one elective district for an appearing May 28,. 1982; office on the ballot until county political of a chairman committee previously apportioned has who the number of delegates county precincts to the convention as they May may 5, 1982, existed on make such changes necessary by pre- are the division of using cincts authorized this order the same original apportion- formula that was in the used changes ment, and that all shall be delivered to county by p.m. election commission on June 1, 1982; person any peti-
That who has heretofore filed containing required signatures tions number of delegate county for election as from a to the convention precinct, precinct and that has been changed pursuant placed to this order shall be on precinct delegate the ballot as a candidate for county precinct convention from the in which he resides. jurisdiction.
We retain supply dissents and will Moody, Jr., J., Blair (See statement with the final order of the Court. 214.) post, p Order May 21, Reporter. Entered 1982. — by Court, On order of the motions the Demo- Legislative cratic members of the Commission on Apportionment for immediate consideration and permission for ing to submit their motion for rehear- typewritten considered, form are and are hereby granted. rehearing by The motion for filed Mich by JJ. Fitzgerald, Levin and
Concurrence of the Commission members the Democratic Legislative is considered and hereby William Faust The motion denied. rehearing remedy, if the motion for intervene as were thereby granted, and is denied. moot becomes fully Fitzgerald concur Justices Levin say: 1982, held that this Court March On area/population weighted formulae, invali- land Reynolds Sims, 533; 84 S Ct v 377 US dated (1964), remaining 1362; L Ed 2d 506 *44 4, 2-6 apportionment 1963, §§ art rules of Const interdependent severable, and that not and were apportionment establishing provisions com- an the concerning and review its function and mission this Court that, severable, ac- not and were also provi- apportionment cordingly, rules and the respecting apportionment commission sions pp 115, Ante, 138. cannot be maintained. I drawing opinion of the Court directed The compliant fed- with districts in a manner election requirements consistent with eral constitutional history state, and that of this the constitutional plan redistricting apportionment resulting and Legislature the Gover- until the would stand people provided or the law an alternative nor plan. pp Ante, 116, 142. judgment 25, March this Court entered
On opinion, pursuant which, declared order to the provisions districting apportionment adjudged 1963, 4, §§ to 2-6 had been Const art unconstitutional, 38 senators and and that In JJ. LEVIN CONCUERENCE BY FITZGERALD, AND provided 2-3, representatives, art shall §§ contiguous, single-member be elected from districts pursuant districting and apportionment plans drawn as provided opinion for in the of the Court and that order.1 opinion appointed and order Bernard J.
Apol supervise drawing and submission to this Court for approval legislative redistricting accordance with the set forth in instructions the Court’s opinion. opinion directed that the election districts
be drawn in accordance following with the criteria: "(a) Senate and house election district lines shall preserve county lines with the least cost to the federal principle equality of population between election districts consistent with the preservation maximum county lines exceeding and without range of allowa- divergence ble under which, federal constitution until the United Supreme States other- Court declares (91.8%-108.2%). wise, shall be deemed to be 16.4% it is necessary lines, "Where county to break because range otherwise the exceeded, divergence of allowable would be there shall be shifted the fewest or2 cities townships necessary to reduce the diver- gence sufficiently bring it range within the of allowa- divergence. ble *45 "Because of the range narrowness of the of allowable divergence, anticipate only orga- we that one will nize the breaking counties with the county least of lines. "(b) After county drawn, the lines are the election district lines within those counties to which there is
1Ante, p 143. filed; opinion originally The words or” “cities were not in the oversights days this and other were discovered within a few of the filing opinion Reporter of the on March and the Court directed the of Decisions to add those words and to make the other corrections in opinion. Mich 96 by Fitzgerald, JJ. Levin and Concurrence representative or one senator more than apportioned with the least township lines city be drawn shall population of equality of principle the federal cost to the maximum with consistent election districts
between and without city township lines of preservation divergence. range of exceeding allowable township or necessary city break it is "Where range diver- lines, of allowable otherwise because exceeded, shifted there shall be gence would population necessary to achieve people number n affected election districts between two equality shift. "(c) township to which there city or Within representative, or more than one senator apportioned achieve the drawn to district lines shall be election maximum compactness possible within a dis- range equality between absolute 98%-102% township.”3 city tricts within commu- Apol that Mr. shall provided order concerning application questions "any nicate redistricting apportionment, the criteria matter, in this in the Court’s opinion set forth Court will resolve such the clerk of this Court. The re- and if their resolution questions promptly, addition, or modification quires amendment this Court’s this opinion criteria contained in matter, addition, such amendment or modification announced the issuance a Court will be order.”4 opinion provided "Legislature also the Governor with
may, by approved by statute preceding immediate effect at least four weeks filing nominating petitions August date for for the Legis- redistrict and primary, reapportion lature in a manner with federal and consistent statutory constitutional Such a requirements. state 3Ante, p 141.
4Ante, p 143. *46 by Fitzgerald, JJ. Concurrence and Levin redistricting ánd reapportionment plan shall su- persede plan directed to be drawn in accor- (a)-(c) dance with” the criteria set forth in the opinion quoted of the Court above.5
The order on opinion elaborated and stated: Legislature may, by "The a statute which has imme- approved by diate effect and is the Governor on or 4, 1982, May preserve before in order to the established year, election schedule for this reappor- redistrict and Legislature tion the in a manner consistent with fed- eral and requirements. state constitutional legis- If such lation is enacted Court will review sponte it sua announce, order, promptly forthwith and by whether it is consistent with federal state constitutional re- quirements. legislation If such is found to be so consis- govern tent it will legislative elections due this year and subsequently in accordance with the order to be legislation issued the drawn this Court. If enacted, no such plan legislative redistricting apportionment pursuant govern this Court’s order will elections year. ordering held this Before into effect pursuant drawn to this Court’s public order a hearing will be held.”6
A 14, 1982, On April the Democratic members the apportionment commission filed a motion for rehearing, stating that this Court had found the provisions of Michigan’s 1963 Con- stitution to be unconstitutional "and then reim- posed much the same provisions on agent its own Apol”, Bernard and that the Court had done so "(1) without affording parties process due input standards, what remedial if any, would if apply the state constitutional provisions were (2) stricken; based on a misconception of Michigan 5Ante, p 142.
6Ante, p 144. Mich 96 Fitzgerald, JJ. Concurrence Levin and (3) post- history’; in violation of
'constitutional *47 Supreme Court United States v Howell Mahan legisla- rejected authority, for court-ordered which plans ap- reapportionment mechanistic such tive ” (Emphasis original.) plications of Mahan. Republican May 1982, of the members On response filed a written commission stating pro- rehearing that due for to the motion opportunity had been be heard cess and an provided, opinion in the set forth that the criteria to the constitutional the Court do conform of history state, Court’s decision this and that the post of the -Mahan decisions violative not Supreme Court. United States
B Apol opinion Court, Mr. to the Pursuant concerning questions to the Court communicated the apportionment. redistricting application of the criteria of the Court communi- The clerk Apol; Apol with the Court Mr. met cated with Mr. progress reports. submitted in conference and responded Apol’s inquiries, Mr. opinion reiterating in the criteria set forth expanding criteria as follows: such
1. The Senate consists of districts. 2. The House consists of 110 districts. contiguous, single-mem- 3. All districts shall be districts. ber population
4. not The districts shall have a exceeding of the and not less than 91.8% 108.2% census, which, ideal district on the 1980 based persons 243,739 Senate and would contain 84,201 in the persons in the House.
5. The first be boundaries districts shall only extent drawn to contain whole counties to the range this within the of diver- can be done 16.4% Fitzgerald, JJ. Concurrence Levin and range gence and to minimize within that county which are number of lines broken.7 county broken, If line is the fewest or 6. cities divergence townships necessary to reduce the shifted; shall be between two cities within 16.4% townships, bring or of which will the district both range, city township within the with the shifted.8 least shall be plans 7. Between two with the same number of county breaks, line the one shifts the fewest townships selected; cities and statewide shall be if plan more than one shifts the same number of townships statewide, cities and that shifts people aggregate in the the fewest statewide to county election districts that break lines shall be *48 selected. county
8. In a which has more than one senator representative, or the boundaries of the districts only shall first be drawn to contain whole cities townships and to the extent this can be done range divergence within mini- the of and to 16.4% subsidiary part county if There is a rule that one of a is shifted to county one district and all the rest of the that counts as one break. is shifted to another district broken, county townships Where lines must be whole cities or breaking city township must be shifted in order to avoid and lines. whether, townships The Court considered when cities or must be (i) shifted, necessary townships there should be shifted the number of cities or (ii) districts, equalize population only to the of the two or townships bring necessary the number of cities or the districts range divergence. within the of allowable The Court concluded that concept minimizing breaking county the the community created, of the of extended to lines shifting townships. county kept of cities and A is more intact as a interest, special and fewer election districts must be townships necessary when the minimum number of cities or ' are shifted. possibility townships townships There remained the that two sets of cities or might might rule; satisfy example, the above each of two population required again contain the to be shifted. The Court concept preserving concluded that the counties as communities of possible required township interest set of to the fullest extent that the or townships people necessary with the fewest should be shifted. 413 Mich by Fitzgerald, Concurrence Levin JJ. city range the number that
mize within township broken. lines which are township city broken, there line is or
9. If a necessary people the number of be shifted shall achieve equality population the two elec- between except shift,9 the affected tion districts may equality drawn the lines lieu of absolute along comparable boundary; or closest street the shifting necessary plans, alternative between compact people, plan more which number is to be selected. plans, have the two both of which
10. Between township city breaks within same number of particular county, which minimizes one divergence in districts across county is to be selected. appor- township city which is
11. or Within representative, one senator or tioned more than to achieve the district lines shall be drawn election compactness possible popula- within a maximum range equality be- tion of absolute 98%-102% township. city tween districts within Compactness shall be determined circum- 12. scribing minimum each district within a circle of measuring part area, radius and not part state, inside Great Lakes and not of another plan not inside the district. The circle but be selected is the with the least area within all the not circumscribed circles within district by the circle.
C April 29, 1982, a House On the Court received plan plan Apol; Senate from Mr. it had received a 9 applied county rule This rule is somewhat inconsistent with the compromises inconsistency simply the line breaks. That inherent reflects one of opinion. in a unanimous Apportionment 157 by Fitzgerald, JJ. Concurrence Levin and on 27. April plans, Apol’s Both and Mr. covering April April 29, memoranda and were re- public April leased to the on 29. 30, April
On the Court separate entered two directing orders hearings 5, be held May 1982: hearing
—a in the morning on the mat- subject ter of the motion for rehearing which had been filed the Democratic members of the apportion- commission,10 ment and public hearing
—a the ques afternoon on the tion whether the plans submitted Mr. Apol adhered the rules and standards set forth the opinion. Court’s
Bills had been introduced in the Legislature providing redistricting for reapportionment, and but Legislature the adjourned on 4 without May agreeing on a bill.12
At hearing, the 5May on the motion for rehear- ing, counsel for the Democratic members of the on Legislative Commission argued the criteria set forth in opinion of the Court the redistricting for apportionment and Senate and House were erroneous.13 Counsel for
10Ante, p 145. 11Ante, p 145. passed May providing A bill had the House on for the redistrict ing reapportionment of the House had which been transmitted to provisions concerning Senate. This bill did not contain the redis tricting reapportionment day, Later in Senate. redistricting Senate apportionment provisions. added senatorial May bill was returned to the House on 5. No further action was bill, taken on the and no bill was submitted to the Governor. passed majority Neither the House nor the Senate with was (Const 27). 4, sufficient for immediate effect § art sought, relief, rehearing among motion other to have the for the hearing, Court lawyer "vacate its At decision”. objections Democratic members said that his went to the criteria and asking holding that he was not its reconsider decision apportionment provisions concerning provisions that the and the longer commission no could be maintained. *50 96 413 Mich
158 by Fitzgerald, JJ. Concurrence Levin and the criteria argued members Republican the were valid. 5,May on the public hearing the afternoon
At Crim;14 appeared: Speaker Bobby following persons Lax, the lawyer representing majority E. a Jerold Faust, Senate;15 Senator William caucus the leader;16 Brown;17 Senator Basil W. majority senate Kleiner, the A. a Democratic member of Robert Legislative Apportionment;18 on Rob- Commission Republi- the Henry, lawyer representing ert L. Legislative can of the Commission on members Weider, F. who said he Thomas Apportionment;19 himself;20 Representative Ethel representing was VanderLaan, mi- senate Terrell;21 Senator Robert 14 adopt urged Repre Speaker House of Crim the Court to for the redistricting reapportionment plan major which a sentatives ity adopted May on 1982. of the House had 15 plan comply Apol that the not with the Mr. Lax contended does opinion. criteria set forth in the 16 plan April Apol that the of the 29 Faust said release Senator agreement impossible bipartisan in the Senate it to reach made because, plan pursuant compared 1972 which to the elected, present Apol plan been members of Senate had was, advantage Republicans gave consequence, an to the and there Republican negotiate with incentive for senators Demo insufficient cratic senators. urged by find a matter He the Court to method which the could having returned to the Senate under circumstances "not tage people an advan political party spelled body any to one out this to the arena, give my I think that in that and take Senate. judgment, plan Apol public have if the had made we would have not been bipartisan agreement. today, would had a bill reached a And we signature.” on the Governor’s desk for 17 Apol plan, Senator Brown said that as a result of the 85%-90% territory, urged the Senate district in which he lives will be new agree provide Legislature the Court to additional time for the on a plan. Apol plan comply Mr. Kleiner contended that the does not with opinion. the criteria of the plan comply Henry Apol Mr. with the contended does opinion. criteria of the Apol plan comply Mr. Weider contended that the does not with opinion. the criteria of the urged adoption Apol Representative Terrell expressed opposition incum- to what she characterized as House' Fitzgerald, JJ. Concurrence Levin and nority leader;22 William R. Representative Bryant, Jr., leader;23 Representative house minority James Defebaugh;24 Representative E. Debbie Stabenow.25
The Court received written submissions from Crim, Faust, Speaker Representative Senator Sta- *51 benow, Kleiner, Weider, Mr. Mr. and a number Legislature speak members of the who did not at hearing. public the
D Ketron, Inc., engaged The Court to prepare com- puter-based plans. The Court districting received preliminary plans from Ketron for the Senate and the House. appeared
It on comparison Apol of the and Ketron that plans Apol plan the in was some particulars more compliant with the criteria than plan plan passed May bents’ that which had the House on 4—because —the Park, district, plan Highland City part would divide the of her into two districts. 22Senator VanderLaan said that the Senate and House had failed adopt plan, a upon contended the that bills had not been voted in 4, requirements 26, accordance with the asserted that "bipartisan of Const art and § plan by majority the offered the senate was a not plan” unacceptable Republican and that it was to the minority. opinion municipal expressed approval He of the criteria set forth in the Court, stating breaking county of the “that as few and possible practice”. boundaries as is sound constitutional He plans that stated the that been in had offered the House and Senate plans, preservation incumbency were incumbents’ that a was not proper not reach a "reasonably concern that and he was sure that the Senate will compromise plan” urged adoption on a Senate of the Apol plan. 23Representative Bryant although May said that he had voted plan House, passed for the had which the his was was on vote understanding minority subject support that House to there being plan acceptable minority, a Senate to the Senate that not having plan been acceptable achieved the House was not to the House minority. 24Representative Defebaugh, member, Republican said that he supports plan. Apol criteria 25Representative expressed support plan Stabenow for the which passed because, opposition Apol plan had view, the House and to the in her adversely representatives. it would affect incumbent women Mich by Fitzgerald, Levin and JJ. Concurrence the Ketron was more plan, Ketron while particulars. in other compliant provisions and fea- Court resolved criteria, compliant with the which were most tures plan, Apol or the Ketron forth in whether set adopted. be should inde- Apol plans prepared and Ketron were plan was mathe-
pendently.26 prepared The Ketron located another state matically technicians the geography unfamiliar with either who are provides of this state and history the political against how- injection, of protection measure judgments subjective unintentionally, ever knowledge. Having the persons who have such separate groups provides plans prepared by two will district lines further assurance in light the criteria more with compliant Apol Mr. and Ketron span time which tight working. been have *52 plans cautioned that Apol
Mr. and Ketron have the criteria no complying exactingly more with if more time were avail- prepared doubt could be able.
E 13, 1982, promulgated May Court On 5, Apol plan May and stated that after revised 1982, hearing the Court had plans Apol "directed J. sub- Bernard reconsider 29, light by April particularly in mitted him on 27 and 5, public hearing May on the comments made at 1982, and in lieu of the written materials submitted support presentations, upon recon- of oral and such any and all sideration to recommend 26Ketron, Inc., supplied preliminary was with a Senate which prepared by Apol Ketron was Mr. before the contract with had been entered into. In re by JJ. Fitzgerald, Concurrence and Levin plans by April modifications to submitted him on and which he considered make the plans would said compliant with the more rules and standards set forth opinion.” in the Court’s Apol
Mr. incorporated into the revised plan improvements on ap- modifications based which peared upon plan, examination of the Ketron com- munications from Messrs. Kleiner and Weider and others, improvements discovered on more com- plete Apol. examination Mr. by and his staff. The 13 order May further stated: having "Several modifications by been recommended Apol Court, J. Bernard and considered he was prepare proper directed to them in form for inclusion plans approval substitution in the submitted on April Having 27 and 29. received those modifications in 12, 1982, appropriate May form on hereby it is further (1) ordered that the clerk of this Court shall treat those record, ány ordinary public modifications as and make any their sons; per- contents accessible to all interested (2) any persons and all may interested file clerk, 19, 1982, with the arguments until 12 noon on May written (a signed original copies) attempting accepted to show that the modifications should not be ground on the they do plans not cause the submit- April ted on compliant 27 and 29 to be more with the rules opinion.” and standards set forth in this Court’s
The Court received 19May written communi- persons cations from various which were consid- ered by the Court in conference on 20. May
The May 13 provided: order further considering "After all written with submissions filed *53 pursuant order, the clerk to this by and in all 12 events 21, 1982, May noon on this Court will cause to be to delivered the office the Secretary of of State an order directing law, publish that he provided by as hold Mich by Fitzgerald, Levin Concurrence JJ. year for this accordance legislative elections the by with, to Court Bernard J. this plans submitted the 29, 1982, by the amended April 27 and Apol on by him on to this Court thereto submitted modifications by submissions 12, persuaded 1982. If the Court May of the modifica- any this pursuant to order filed Apol by J. on to this Court Bernard tions submitted 1982, order to 12, implemented, the May not be should 21, 1982, May will so indicate.27 on 12 noon be issued foregoing paragraph May the Pursuant an today has entered order order and to publish of Secretary State directing this in accor- legislative year for hold the elections reapportionment redistricting dance with in the and described next thereby approved plans paragraph: plans approved
"The are: approval by for plans to this Court "1. The submitted Apol; April under the of J. for the Senate date Bernard 27, 1982, Representatives the House of under and for 29, 1982; April date of parts Substituting provisions "2. for the said 29, superseding provisions April 27 and plans dated and submitted Bernard J. modifications dated Apol approval May 1982.” for Court continues: order Today’s jurisdiction purpose "The Court retains for necessary taking may such affirmative action as pursuant orderly insure an election in 1982 to a consti- tutionally plan.”28 valid provided 13 order further for an exten- May filing until nominat-
sion June time 27Ante, p 147.
[28] Post, p 213. *54 In Fitzgerald, Concurrence Levin and JJ. ing petitions of payment filing fees for senator, offices of state state representative and in representative Congress and changed the date election for the primary year 1982 only 10, August August from 3 to 1982.
F The populations the counties are such that there cannot be less than three line county breaks eight the Senate and in the House. Apol plan, 13, revised May released today adopted, has the county, city and township line breaks forth in Appendix set A.
A list of the Senate and House election districts by population and the variances is set forth in Senate, B. In Appendix the maximum devia- tion is a district overrepresented 8.13% and in a district underrepresented 8.11% for a total maxi- mum deviation of House, In the 16.24%. maxi- mum deviation is in a district overrepre- 8.19% sented and in a district underrepresented 8.15% for a total maximum deviation of 16.34%.
II 25, March opinion of the Court de- clared that provide must "[t]his redistricting Legislature in compliance with federal constitutional require- ments and in a manner most consistent with the constitutional history of this state”. The Court said it saw "in the constitutional history this state dominant commitments to contiguous, single- member districts drawn along the boundary lines of local government units of which, within those limitations, are compact as feasible.”29
29Ante, p 140. Mich Fitzgerald, JJ. Levin and
Concurrence lines be drawn district directing that election within township lines county, city preserve divergence, the Court range of a maximum 16.4% Su- United States decision of on the relied Howell, 315; S v 410 US in Mahan preme Court (1973), that Court L 2d 320 where 979; 35 Ed Ct legislative apportionment upheld a state had which, percentage deviation with a maximum 16.4%, goal from departed had *55 what the Court said in order to achieve equality rational, goal preserv- legitimate state the was political subdivisions integrity the ing state. rehearing the Demo- by motion for filed Legislative on of the Commission members
cratic
reliance
that
this Court’s
asserts
Apportionment
in subse-
Mahan v Howell because
misplaced
Meier,
v
1;
95 S
Chapman
decisions,
US
quent
Finch,
v
and Connor
(1975),
751; 42 L
2d 766
Ct
Ed
(1977),
1828;
Counsel could not have been was re- presented, opinion before the March leased, arguments concerning applicability rehearing and at Mahan made motion in our argument. arguments require, the oral opinion, a response opinion form.31
Ill It is Chapman contended that and Connor stand proposition for the reap- that all "court-ordered” portionment plans are if constitutionally suspect they produce popula- substantial deviations from compelling tion equality justification. absent This reading focuses on phrase "court-ordered” and goes on to assume that all plans drawn by (ordered) criteria defined a "court” or by a person designated or body by a court automatically come Chapman/Connor within the rule.
Such an assumption fails to take into account the source of the plan "court-ordered” doctrine and the factual context Chapman and Connor. When these factors are into the analy- introduced sis, it appears that Chapman and Connor do not hold court, that all plans ordered by regardless a expanding rehearing No brief on the motion for was filed after argument oral was . ordered. judgment subject The by of this Court is to review the United Supreme (28 may subject States Court and also be to collateral attack 2284[a]) USC following if an action can be maintained in the federal courts adjudication an of federal constitutional issues in this Court. events, explanation See fn 55. In Court who in our upon all an of the basis which this rejected adjudicated adversely and to the contentions of those object Apol plan should, to the their federal constitutional claims opinion, accompany denying petition the Court’s order rehearing promulgating Apol plan. and 413 Mich by Fitzgerald, JJ. Concurrence Levin ordinarily approximate source, must
equality, for a narrower set of rather stand but propositions. Chapman higher in announced
The standards apply plans by ordered federal Connor to reapportion remedy a to a failure of state courts to in requirements compliance of the Four- with the higher standards do not teenth Amendment. plan promulgated by apply a "state-ordered” bring pursuant authority to, or about state compliance with, The rule Mahan state law. by Chapman applies or Connor to an unmodified apportionment plan by ordered a state court compliance with state law as well as to effectuate a plan adopted legislature by by a a state state apportionment board or commission.
A apportions legisla- a federal court a state When legitimate policies ture, state there is a risk ignored or misunderstood. To limit en- will be by judiciary croachment the federal on state sover- eignty, Supreme States Court limited United requiring by the discretion of the federal courts greater population equality court-or- federal plans. present dered court state court which state This concern is not where
ordering plan court not federal but declared to enforce
has and acts policy. language reasoning of the Court
Chapman plan, indicate that "court-ordered” Supreme the United States Court means a implement devised quirements a federal court to the re- where, of the Fourteenth Amendment *57 In re JJ. by Fitzgerald, Concurrence Levin and state there is no the federal court policy, because have discretion. would explained Chapman, p 19, the Court
As ordered, there often plan is court is no "[w]hen policy”. pressing state "Absent particularly fea- districts, calling for multi-member a tures United district court should refrain from imposing States upon (Emphasis supplied.) them State”. Chap- man, higher by imposing standards a United devising States district court when it is a remedial with a view plan, confining to discretion of the courts such is federal where discretion not limited not limit policy, power state does of a state to define policy any court state more than it limits power legislature or of a state apportion- ment board or commission to define state policy.
In
Supreme
Connor
the United States
that
plans
reasoned
federal
court-ordered
were
subject
rigid
more
standards of scrutiny because
the federal courts do not have the
authority
resolve sensitive
questions
policy:
state
high
"These
position
standards reflect the unusual
reapportionment
plans.
federal courts as draftsmen of
emphasized
'legislative
We have repeatedly
reap-
portionment
primarily
legislative
is
a matter for
consid-
determination,’
Sims,
Reynolds
eration
v
377 US
533, 586;
1362;
(1964),
84 S Ct
Concurrence by a plan for a drawn justification sufficient was had assertedly court which district States United local lines of boundary along the drawn been that ruled subdivisions. political bases, "The district defective. was, two plan 'unique such any identify here to failed court as structure Mississippi political of the features’ county protection judicial a permit would to duty judicial in the teeth boundaries little with equality goal population 'achieve ” sup- (Emphasis minimis variation.’ more than de re- Connor, duty” the "judicial 420. That plied.) court, a federal generally of a duty to is the ferred Amendment the Fourteenth court, implementing grounded on its discretion limitations unguided by the other basis clear from in becomes policy, state in plaintifFs that The Court said of decision. Court an to the District had "submitted that case pol- the state plan that served alternative Senate boundaries better county against fragmenting icy adopted, ultimately the court plan did the than that are achieving districts closer to and also came ”. practicable’ population equal 'as nearly convincing a the absence of The Court said "[i]n plan a adherence to for its continued justification is less efficacious in terms policy that even state there can be proposed, plan actually than another Court’s the District no alternative but to set aside Connor, 420-421.32 decree.”
B rule, Chapman/Connor in the Implicit Blackmun, part Chapman, in in who wrote concurred Justice observing Connor, Burger, opinion joined by p in an Chief Justice disapprove the District did "understand the Court to that he Court’s decision not districting county wherever to use lines as boundaries greater possible, though policy may this cause a variation even appropriate population court- for a district ordered than would otherwise be appears produce plan. plan adopted to The final in this case greater disparities necessary to effectuate than even county boundary policy.” In re JJ. Fitzgerald, Concurrence Levin stringent are requirements there more for so- plans, called remedial is a "court-ordered” rather than federal state-ordered court-ordered pursuant can be to drawn criteria different than a employ promulgating federal court could a plan.
Although a legislature ordinarily given is power itself, reapportion Michigan among power states that has allocated the to reapportion Legislature body other than the Legisla- ture. This Court has construed the Michigan Con- stitution it found within authority *59 the policies govern declare which should state legislative apportionment and to implement them. Connor,
In the United States Supreme Court (the spoke legislature of the case typical has the itself) power reapportion to that federal courts when they confront state-initiated appor- review plans. tionment There is reason suppose no that the United Supreme States Court would regard declaration by legislature a state of apportionment as more policy deserving of deference than a defin- itive construction by the state’s highest court criteria that be must observed under the state’s constitution. concluded,
The Court in Chapman, with the observation "reapportionment is primarily duty through of the State its responsibility legislature or other body rather than of a federal court. Reynolds Sims, v 586; Maryland 377 US Tawes, Committee Representation] Fair v 377 [for (1964).” US 84 676; 1442; S L Ct Ed 2d (Emphasis supplied.) Maryland The reference v Committee Tawes has particular significance for the instant case because the other body there state court, was Maryland’s highest Ap- the Court of 413 Mich Fitzgerald, JJ. Levin and Concurrence put thus Supreme States The United peals. as a the same level court on highest a state’s so-called legislature purposes state’s where a applicable doctrine "court-ordered” in apportion proceeding may court federal policy”. the absence of "state what Court clarified Supreme The United States Connor, 414-415, "a said, in it it meant when in accom- court will be held to stricter standards legislature” than will a state its task plishing high it said next when paragraph the very "[t]hese of federal position unusual reflect standards In plans”. reapportionment as draftsmen of courts spoke again it twice paragraph the same "The federal courts contrast courts: federal and "a federal mandate”, distinctive possess no (Em- obligation”. the unwelcome court is left with phasis supplied.)33 735, 751; Gaffney Cummings, v 412 US 93 S.
In
supra,
Supreme
Chapman,
Court de
the United States
evaluating
standards for
whether multi-member dis
clared that the
tricts are
a state
holding
permissible
depending
"differ
on whether a federal court or
(Emphasis supplied.)
legislature
the use”.
In so
has initiated
special rule for what it charac
the Court indicated that the
(emphasis
reapportionment
terized as a "court-ordered
scheme”
(Connor
Johnson,
690;
original)
adopted
91 Ct
was first
v
402 US
S
1760;
[1971])
"supervi
It is an federalism, axiom of recognized by the courts, federal the federal government has no power to override state law unless it conflicts with the federal constitution. This Court’s construction of the Michigan Constitution is state law as much any legislative enactment or executive decree. Absent infirmity under constitution, federal this Court’s construction of the Michigan Constitu- tion would be respected by the federal courts. To apply different standards scrutiny apportion- plans ment generated from state law depending on their institutional source permit would the very encroachment on state policy that Connor and Chapman were preclude. meant
C Connor, the United States district court found that Mississippi had violated the Fourteenth Amendment. The district court’s discretion to mold a remedy was upon founded the need to vindicate a federal constitutional right. This Court’s decision in contrast grounded upon the Michigan Consti- tution. It represents a final declaration of state law. The reapportionment plan ordered by this Court has been drawn to with comply require- ments of the Michigan Constitution and not as a *61 413 Mich Fitzgerald, JJ. Levin and
Concurrence expedient remedy temporary failure to remedial requirements of the federal the to conform constitution. provisions the decided that
When this Court providing apportion- Michigan the Constitution apportionment commission rules and for an ment longer maintainable, it was faced with were no redistricting govern question what law would people apportionment until acted —whether requirements only any law there were state requirements. The Court concluded federal law requirements as that there were state law well requirements. directing law In that federal redistricting reapportionment be in accor- Legis- approved criteria, unless the dance with agree on an alter- lature and the Governor could plan, manifestly articulating native the Court was requirements as there are no such fed- state law requirements. eral authority provide
The source the Court’s power requirements is its to construe the such Michigan part Constitution. As of its consideration apportionment in the instant case whether provisions apportionment rules and the commission are as a matter of tional law for the
Michigan constitu- partial severable survived the inva- lidity under the Fourteenth Amendment of the rules, the Court considered provisions whether, severable, if those were not proper Michigan construction of the Constitution empowered appor- this Court to determine how the redistricting tionment and of the state shall be people conducted in the interim before the act. It was the conclusion of this Court Michigan empowers Constitution this Court Implicit make such determination. in the Court’s firstly, authorizing decision are the rule Fitzgerald, JJ. Concurrence Levin and drawing of a accordance with the approved criteria and the rule authorizing Legislature *62 and the adopt Governor to a superseding plan, were both authorized by Michigan Constitu- tion; and secondly, whatever the source of those rules, they requirements are of state law rather Court, than federal law. The in the exercise of its 6, art 1 judicial power, declared that these § are requirements state law which are authorized by the Michigan Constitution.34 plan may A provide federal court "remedial” be ordered to for a apportioning authority power failure of a state reapportion to exercise its to compliant in a manner with federal constitutional re quirements. "remedy” act, This Court’s does not concern a failure to power but "remedy” to act. This Court’s decisional determines apportioning authority where the state resides. The exercise of that power, directive, not, again albeit at this Court’s in contrast with a plan, federal court-ordered remedial remedial of a non-exercise or of a non-compliant apportioning power. exercise of the state constitution, This Court construed this state’s in the exercise of the 6, judicial power, art reapportion in the power § and decided where the state to prescribed resides. The Court concluded that the criteria applied constitution should be by observed and but not legislative apportionment commission. Apol "agent” Mr. is the of the Court in the sense that he was appointed by charge, however, the Court. His was to exercise the state apportioning authority compliance with the criteria found in this Apol given state’s broad-ranging constitution. Mr. was not discretion reapportion state, to which duty implement but a to observe and criteria largely eliminate the exercise of discretion. questions regarding application criteria, When arose of the Mr. Apol put Court, Court, them to again responding, and the power exercised the art to § construe the constitution. indeed, may, There be little Apol distinction between what Mr. has legislative apportionment done and what the commission would have required been preserved. to do if it had been Both derived their authority Michigan from the required Constitution and both were observe the Michigan criteria found in the 1963 Constitution as by construed this Court. Although explicit this regarding Court was not what state constitu- requirements apply tional ment and the tive remedies redistricting would reapportion- to a plan resulting from Legislature the "collective action” of the Governor, inconsistency there is no inherent in the alterna- provided by reapportionment the Court: in accordance plan
with
by
Apol pursuant
drawn Mr.
to the criteria set forth in
opinion,
reapportionment
the March 25
the “collective action”
Legislature
and the Governor in a manner "consistent with
requirements”.
federal and state constitutional
While the Court did
Concurrence Levin and
D Assuming remedy seeking the Court’s Michigan requirements preserve constitutional is a meaning plan of Con- "court-ordered” within Apol plan nor, it does not follow that the is invalid stringent subjected when to more review. Con- rejected nor, the United States district court had plan closely an alternative conformed more against fragmenting county policy the state bound- produced aries and population equality less deviation from the ideal of plan
than the the district ultimately adopted. court proposition facts, its Connor On stands for the neutrality plan that the of a court-ordered and the bona fides of a claim that has been policy observing devised to adhere to a local *63 questioned boundary lines will be where alterna- plans tive accomplish have been submitted the court that policy expense
this at less to federal interests. Supreme
The United States not Court did hold Chapman in that variance in maximum 20% plan by deviation in formulated federal per court was se invalid. It held "a rather that population magnitude deviation of that in a court- plan constitutionally impermissible ordered signiñcant policies the absence of state or other acceptable require adoption considerations that plan great varianceChapman, a with so a 24. (Emphasis supplied.) proceeded then policy consider whether there was a of maintain- speak question not requirements to the of what state constitutional apply Governor, Legislature would they might to collective action of the and the precisely well have been found to be the same as the opinion. opinion criteria set forth in the March 25 When was filed Legislature it was uncertain whether the and the Governor would be agree upon plan, indeed, event, able to they a in the did not agree upon plan. simply speak question This Court did not to a that might unnecessary it to decide. by Fitzgerald, Concurrence Levin and JJ. ing political local boundary lines and concluded the United States district court had erred in finding that North Dakota had such a state policy. The Court concluded that plan” "court-ordered before it failed "to meet the standards established for evaluating plans variances formulated or other state bodies”. Chapman, legislatures state (Emphasis 26. supplied.) In stating that a court- plan ordered "must be higher held to standards than a State’s plan” own (emphasis supplied), Court clearly distinguished between plans ordered district courts and plans formulated by state legislatures "or other state bodies”. The Michigan Supreme Court is an "other state body” within the intendment distinction; Court, this in con- trast with Chapman, has declared as a matter of state law that there is a state policy preserving local political lines. boundary
The holding, in Chapman, plan was that a reapportionment of a state legislature, ordered court, aby must "ordinarily” achieve population equality with little more than de minimis varia- tion, and, if there is more than a de minimis variation, it is the reapportioning responsi- court’s bility to articulate precisely why with minimum population variations adopted cannot be because of ’important and signiñcant state consid- erations rationally mandate departure [which] from these standards”. Chapman, 27. It is thus clear that even a federal court may depart from equality achieve goal. a state *64 federal court would not then acting be in the exercise of discretion but rather would guided by state goal.
E In conclusion, a plan is a "state-ordered” plan 413 Mich by Fitzgerald, JJ. Concurrence Levin and purposes Chapman/Connor rule, plan legislature, by an whether apportionment is drawn a commission, other
board or or some person, agent, authority body under or who derives authority law, in the state whether that is found opinion judicial constitution, statute, state’s of a a or a question is state court. The critical whether plan comply was with state and drawn requirements, only law federal law requirements. or with federal plan extent is
To the (as requirements comply drawn to with state law requirements well as the federal law enunciated Sims), Reynolds higher Chapman/Connor v apply. standard does not higher plans
The standard for "court-ordered” prescribed by Chapman/Connor applies rule apportionment the extent that a is court-ordered guided by policy. not or controlled state Where a guided court-ordered or con- by policy, reviewing trolled state the same stan- applies plan dard apply to a court-ordered as would legislature plan by
to a the state drawn having body apportioning authority. other state A federal court’s determination that there is a policy standard; state will be reviewed a strict reapportioning review, it to facilitate such court’s is the responsibility precisely, and, to articulate support presumably, evidence, with its determi- important significant nation that state there are justifying departure from the considerations higher applicable standards to a federal court-or- unguided plan policy. state dered drawn not, thus, departure court-ordered doctrine does preclude ordering a federal court from population variance to from de minimis achieve Chapman/Connor goal.35 simply rule state — Seamon, —; 1518; Upham 102 S L v US Ct 71 Ed 2d 725 *65 Apportionment In 177 by Fitzgerald, JJ. Concurrence Levin requires it be clear that there is a that such state goal departure and that limited to what is goal. necessary achieve that court-ordered plan impose a doctrine does not different standard plans plans for legislature court-ordered than drawn a body or other state where there is in legitimate, goal plan fact a rational state and the goal at seeks to achieve such the least cost to the population. principle equality federal plan imposes higher The court-ordered doctrine although where, standards clearly the state has not goal, identified a state a federal court finds goal. that a state there is case,
In the instant this Court has determined goal. authority, that although a It there state has is Fourteenth Amendment claim is in- volved, to make that determination absent evi- disingenu- dence that the Court’s determination is ous.
No claim is this made that Court’s determina- disingenuous. clearly adequate tion is There justification for its determination that there is a policy preserving political boundary state lines.36 impermissible There is no evidence aof result under the federal constitution; it not has been disadvantages asserted or shown that the result minorities.37 (1982), Supreme three-judge the United States Court reversed a reapportionment plan district court observe because court-ordered did not policies. Supreme announced state The United States declared that a district court is not free to own substitute its com-
pletely plan part reapportion- new when it finds that some of a state’s constitution, ment power being is violative of the federal its making limited to such necessary as are modifications cure the deficiency. federal constitutional 36 Legislature 1982, 158, In re of State Mich 413 — (fns 19). supra minorities, disadvantages appear Even if the result it would that would not be determinative absent evidence that there was an bring 124; Chavis, intent about result. v 403 US Whitcomb Mich Fitzgerald, Concurrence Levin JJ.
IV (1) hearing May 5 At the on the motion for rehear- ing, counsel for the Democratic commissioners *66 range divergence pointed out that while the 16.4%, Mahan was there were other characteris- plan approved average in Mahan. The tics of in the Mahan deviation for both houses was corresponding figure +3.89%, for the revised Apol plan is +5.18%. distinguished Mahan could
While be on that appear basis, it not does that the United States Supreme distinguish Court would the instant case from Mahan on that basis. No decision of the Supreme United States average Court turned has on the argument and, therefore, deviation average prece- based on the deviation is without support. dential appears primary
It that the concern or criterion emphasized in the decisions of the United States Supreme range divergence Court is the from equality greatest absolute of the districts with the population. and least Whether that is a correct may view of the matter become clear if the United Supreme opinions States it issues has —as following enlarging upon each decennial census— expressed by the views which have been the Court opinions expres- in the filed to date. Additional may not, sions from however, the Court be forth- coming year for weeks or even another or so. following Mahan,
In
its earlier
statements
(1971).
1858;
S Ct
That language controlling means that limi- tation is the "maximum percentage deviation”. opinion, March this Court considered the "range divergence” of allowable from the federal *67 goal of population equality, noted that following the Mahan of approval a divergence of 16.4% courts generally have concluded that is the 16.4% range and, of divergence, allowable recognizing that the decisions of the United Supreme States impose standard, Court do not an absolute de- range clared that of allowable divergence un- der the federal constitution shall be to deemed (91.8%-108.2%) until 16.4% United States Su- preme Court declares otherwise.39
In adopting
as the
of
range
16.4%
allowable
divergence,
this Court said that
apportioning
"[a]n
authority
justified
adopting
is
in
only
degree
that
of divergence
population
from
equality essential
to
v Mundt,
182;
(1971).
399;
Abate
403 US
29 L
2dEd
Concurrence achieved, flexibil- goals. the state Once achieve divergence from the Accordingly, at end. is an ity is equality permitted of population goal federal achieve- necessary permit to the extent only observing the goals boundary ment of the state compact- and government units of lines of local Ante, p ness.” 127. concept apportioning that "an corollary
A degree only that justified adopting authority essential population equality from divergence concept that an is the goals” the state achieve must, to achieve authority may apportioning divergence degree that goals, adopt the state essential to achieve equality from them. opin- in the March 25 goals identified state of this state. are constitution
ion rooted. be achieved to the they Court directed This consistent with federal possible maximum extent it was the Court’s limitations. Since constitutional controlling criterion was judgment best deviation”, it directed percentage the "maximum that, Court de- Supreme until the United States otherwise, devia- percentage clares the maximum (for tion in Mahan districting apportionment political lines of along boundary drawn plan subdivisions) to the applicable would be deemed Michigan districting criterion Legislature application in the a similar following city, township boundary county, lines. the boundary
When this Court directed that *68 lines be maximize achievement drawn to the limitation it goals those state within the federal be. average did not know what deviation would JJ. Fitzgerald, Levin and Concurrence plan Now that has been it prepared, appears average that deviation is greater the Michi- gan plan Virginia plan. than for the This be a may consequence greater of the rigidity Michigan which require criteria that first county lines be (in drawn and then only larger counties hav- ing than representative) more one senator or may city township lines be drawn. It appears that Virginia was along drawn both county and lines city seeking without to maximize preservation first of lines. The effort county achieve the maximum Michigan adherence to the goals preserving the boundary lines first of counties second of cities and townships does produce tend to concentrations of population at both ends of the range divergence and a 16.4% higher average range of deviation than the Vir- ginia plan. This is a result of the adherence to the goal. state Court, United States Supreme having stated preservation
that of political subdivision boundary a lines is goal, rational state would no doubt expect that having goals states such would seek to achieve them to the maximum possible extent consistent with federal constitutional limitations. To merely point out consequence pur- suit of those goals state is bring higher about a average deviation is not to state a reason for departing from the goal. state
For the United States Supreme Court to hold that average deviation is a limitation would be to add in Mahan on the expressed limitation not legitimate pursuit of a rational state There goal. no reason to anticipate the United States Supreme Court will impose such further limita- *69 413 96 Mich
182 by Fitzgerald, JJ. Concurrence Levin goal preserving pursuit the the of of state tion government.40 boundary of lines of local units impose such an additional If the does Court adequate time limitation, the states it would allow plans these new limitations their to to conform that, such a absent statement it understand would Supreme Court, the states the United States from the state achievement of seek to maximize would goal had been the criterion that articulated within opinion. body by To the the Mahan the Court in Supreme differently, it the United States state expect plans drawn not that would be Court would in the application of from a limitations drawn Virginia plan description features of the of other determinative in did not treat as which the court Mahan, such and if the Court were elevate importance it constitutional would other factors to required changes. provide adequate time make opinions appreciate that of the United We Supreme frequently aver- States Court do mention deviation. age maximum We deviation as well as might think the Court become concerned with average plan if deviation were drawn without rigid constitutionally adherence to kind of required rooted to be state criteria of the kind followed in instant case. Clusters of might range divergence at limits of the extreme purposeful gerrymander indicate a to achieve some 40 opinion explaining grant Mr. Justice Brennan’s in chambers his ing stay three-judge reapportioning of a of a court order New district Jersey congressional legislative districting reinstating congressional reapportionment plan Kirkpatrick v indicates Preisler, 526; (1969), likely 1225; 89 S US Ct 22 L Ed 2d will by Supreme allowing be read the United States Court as the New legislature latitude”, Jersey thereby suggesting that "some tighten Supreme may United mar States Court loosen rather than 1298; 1303; gins. Daggett, L Ed 2d 455 US 102 S Ct Karcher v chambers). (1982) (Brennan, J., in JJ. Fitzgerald,
Concurrence Levin and goal, impermissible of one advantage part body politic over another. Where the has aby legislature been drawn either state a judge or a group judges, the exercise of a broad discretion, ranging the United States Supreme might require average narrower margins against to protect deviation abuse of discretion. Court, adopted however, criteria this are *70 to intended leave little room for the exercise of The population discretion. cluster at the outer range limits of the of divergence is not the 16.4% discretion, result of the exercise of it does not purpose give reflect a to advantage group one another, over but rather is simply the consequence of the Court’s high adherence with a degree of faithfulness to what it perceives to require- be the Michigan ments of Constitutions regarding the power exercise of the to reapportion and redistrict legislative seats. In a case such as this where it cannot be that asserted the at cluster the outer limits range of the of divergence is the result of anything operating other than adherence to the goal, state average deviation is not a determina- tive factor.
(2) Mahan, In Court, the in description its of the plan there Court, before the average mentioned percentage variance and also the minimum popu- lation percentage necessary to elect a majority the also number of districts perfec- within of 4% tion, 6%, and other like descriptive information. In its analysis of earlier decisions and generally, however, the spoke Court only maximum percentage deviation. It referred to congressio- 413 Mich Fitzgerald, JJ. Levin and Concurrence Kirkpatrick41 reapportionment cases nal percentage deviation in the maximum Wells42and per- to the maximum It referred those cases. centage also legislative appor- deviation the state county Adams43and case of Swann v tionment spoke It v Mundt. case Abate percent in Ma- maximum deviation” the "16-odd "[t]he dis- It han itself. concluded permitted parities in a thereunder result that are percentage that we hold to be maximum deviation (emphasis constitutional limits” within tolerable supplied). dissenting opinion referred to the popula- persons in districts which number of was more than tion from ideal deviation 5% reasoning than But none of the and more 3%. any average majority consideration includes or median deviation. Mahan, the district court had modified slightly
legislative plan, reducing the variance popu- court had divided over district 10%. point county one to the where lation of could say opportunity "[t]he of its voters relating legislation County champion local *71 to Scott countervailing virtually is nil. The benefit result- ing readjustment that from the court’s is fact now district’s from the ideal is first deviation change by reduced to Of another ordered 1.8%.” court, "[i]n said terms district Court that Virginia practical politics, complains that of such far Beach representation representation at all so is no legislation local is and that the concerned” people transferred to the deviation "have reduce respect p effectively disenfranchised”, in that been 41 Preisler, supra. Kirkpatrick v 42 Rockefeller, 542; 1234; US S Ct 22 L 2d 535 Wells v 394 89 Ed (1969). 43 (1967). Adams, US 440; 569; L 2d 501 Swann v 87 S Ct 17 Ed In Fitzgerald, Levin JJ.
Concurrence through quite clearly reading It 324. comes from a opinion of the Court’s that the Court associated arguments, itself with those that it found persuasive holding in them that the district court modifying legislative plan in had erred in the achieve reduction deviation from 16-odd% to 10%. Chapman, spoke only
In the Court of the maxi- range mum of deviation and did not mention in its description plan, argument, of the let alone in the average referring Court, the out or median deviation. The with- average deviation, or median said Gaffney "permitted in it had a deviation of showing with no of invidious 7.83% discrimination. Regester In [412 755; White v US 2332; 93 S Ct (1973)], L Ed 2d 314 a variation of was 9.9% permitted.” percentage likewise deviations percentage referred to were maximum deviations. p Chapman, spoke Court, 24, acceptable maximum deviation as "this measure of population equality” (emphasis sup- deviation from plied) stating "developed it had been in cases apportionment plans that concerned enacted legislatures”. state average sum,
In
median or
deviation has not
regarded by
Supreme
been
the United States
Court as a relevant criterion
deviation
where the
justified by showing
policy
is
a state
and adher-
policy.44
justi-
ence to that
Where the
deviation
deciding
minimis,
equality
whether
deviation from
is de
Supreme
reasoning
average
United States
percentage
2321;
Court has adverted in its
Gaffney Cummings,
735, 742;
variance.
v
412 US
Ct
93 S
(1973);
Regester,
764;
of 16.4% median average deviation.
V Mich- has misstated that It is asserted Michigan igan history coun- has not used because legislative building blocks as the basic ties apportionment. history Michigan have of does indeed a While principle apportionment, population-based that has together expressed Michigan Constitutions been township city county, principle that with design election followed in the of lines should be districts. provided Michigan for the has
No Constitution legislative purely popula- seats on allocation of permit- Michigan Constitution has tion basis. No breaking single county can line.45One ted the regarding disagree of course principles this his- that should be extracted from deny tory merit, relative but one cannot their throughout Michigan history its has remained firmly avoiding fragmentation committed to county popula- recently, and, more lines when the point where tion some counties reached legislator apportioned more to some than one was city avoiding fragmentation counties, township lines._ average divergence part analysis median or is claimed where it minimis, requiring the deviation is de the de minimis rule —not grounds
justification equality not of a deviation from on state —was requiring justifica- relied on tion on state but rather rule this Court the Mahan grounds. 158, Legislature 1982, In re Mich State — (fns 19). supra *73 by JJ. Fitzgerald, Concurrence Levin and It not asserted that there is not this textual is commitment; historical the Court’s decision is challenged "political theory it because reflects of boundary representation”. It unit or is contended theory Michigan no that such a history finds warrant disparaged and has been federal deci- sions.
This contention mischaracterizes Court’s de- it cision and the view that has of the taken histori- Michigan Concededly, cal record. and never has does not have opted for Legislature "political say on a unit” But to basis. Michigan opted "political that has not unit” representation say recog- is not that it has not importance political boundary nized the unit drawing lines and has not followed them in the election districts.
Michigan history has a consistent constitutional combining populous less and subdivid- counties ing populous counties to form election districts. As county result, lines have remained inviolate. The following county reason for lines was not "political theory representation unit” but rather Michigan required pres- that each Constitution has autonomy ervation of the electoral of the counties. argument political confuses the unit basis drawing preserve with autonomy lines to political local subdivisions. The United States Sen- organized political every ate is on a unit basis— state receives the same number of senators every regard population. other state without Representatives The United States House of apportioned although basis; on a not organized political boundary basis, on a unit preserved lines of the states are nevertheless —no Mich Fitzgerald, JJ. Concurrence Levin and Congress representative is broken. No line state separate in two states.46 living people represents VI provide the the Court did not that It is asserted proper to discuss what opportunity an parties decide should would be remedy 4, 2-6 were not severable art Const §§ process. of due constitutes a denial this 24, 1982, the Court indicated an February On *74 might that it con- parties to the order addressed weighted the invalidation of that the federal clude 1963 Consti- formulae of the area/population land apportion- the authority the terminated tution argue that parties Both chose commission. ment the invali- commission survived the opportu- Neither took the the formulae. dation of should to what the Court express a view as nity the did not if it that commission concluded provide survive. the only that Court asked might argue
One about survival and not the commission’s about in the event the commission happen what would This, however, be to confine did not survive. would 572-577, Sims, pp opinion Reynolds supra, v is Much of the in states, many political unit at to a discussion of the basis. In devoted least one government, representatives composed units of house was of the of local counties, e.g., just Senate. The like the United States appor explained great length why Congress be at could Court tioned this way legislature but a state could not. Michigan legislative apportionment has not that kind of had —one per county. Michigan populous But did subdivide counties senator combine inviolate. using county populous always being county the less with lines counties simply by political theory implemented is not unit drawing lines. lines as a basis for election district adopted political originally representation in unit basis was for Wayne county supervisors. Apportionment County board of See —1982, 224, post. 413 Mich JJ. Fitzgerald, Levin and Concurrence question the boundaries of the posed an artifi- question cial and manner. The of remedy narrow upon the closely question follows so of the commis- is, fact, sion’s survival it virtually the same question.
In all events the parties Court has provided opportunity argument with an and has oral carefully arguments considered advanced both in the motion for at rehearing hearing, opinion responds and this thereto.
VII contended, It was at the public hearing, Apol is defective because Wayne is County should, therefore, entitled to 9.591 senators apportioned have been 10 senators. could,
Wayne within the population variance 91.8%-108.2%, limits of allocated either or 10 senators without breaking its If 9 boundaries. apportioned senators are average Wayne, Wayne district is if ideal; 106.5% statewide 10 senators are apportioned to Wayne, average Wayne district of the statewide ideal. 95.9%
Similarly, House, in the Wayne can County be apportioned between 26 representatives. and 30 If 26 representatives are apportioned to Wayne County, the average Wayne district is County ideal; of the 106.7% statewide if representatives 30 are apportioned to Wayne County, average Wayne County district is of the statewide 92.5% ideal. Oakland County (immediately north Wayne County) presents the same problem House, because either 12 or 13 representatives can apportioned be to Oakland If 12 County. represen- Mich 96 413 190 by Fitzgerald, JJ. and Levin Concurrence County, apportioned to Oakland are tatives County average of the district is 100.1% Oakland appor- representatives are ideal; if 13 statewide average district is Oakland, the Oakland to tioned ideal. of the statewide 92.4% by approved not Court do ad- criteria question directly, but this dress leave implicitly other to decided it County apportioned Wayne 9 is Whether criteria. identifying the one determined is or 10 senators county plan lines fewest that breaks Senate statewide, townships or the fewest cities or shifts people statewide.47 statewide, the fewest or shifts apportioned Wayne County in both 9 senators Although plans. Apol Mr. Ketron Senate plan Apol a Senate to discover was able Wayne apportioned 4 and broke senators 10 (the county county line same number lines April plan), Apol’s that 10- as in Mr. breaks plan it because not best senator required was townships statewide, of 9 or a shift cities apportioned April plan, Apol’s Mr. which while only required Wayne senators, 7 cities a shift townships statewide. Apol Ketron, Inc., House, both Mr. In the plans working generated independently, House appor- county plans lines, that broke 10 and both (the Wayne representatives 29-1/2 addi- tioned complete the 30th district tional County) plans from Monroe both was drawn representatives. apportioned Oakland importance appor- light political of this given decision, tionment consideration was 1B, 7, supra. part See ¶ *76 In re JJ. Fitzgerald, Levin and Concurrence another, whether there is direct method of fairly resolving apportionment question first; only question after the apportionment had been re- begin solved would the search for the with the minimum number of line county breaks state- wide.
The framers of the 1963 Constitution considered problem, precise a similar number of legisla- larger tors whom the group counties as a are, smaller counties as a group applica- tion of the constitution’s apportionment rules, fairly Although entitled. this Court has held that apportionment those rules not do survive the inva- under lidity the Fourteenth Amendment weighted formulae, land area/population the con- stitution suggest does a method for resolving the apportionment question. Senate,
For the the constitution provided in art 2, that counties with 13 or more apportion- § ment factors shall be entitled as class to senators in the proportion apportionment the total factors of such counties to the total appor- bear tionment state, factors of "computed to the nearest whole number”. There were a total of 500 factors to be allocated to all counties, 400 on the basis county population and 100 on the of county basis land area. significance of the number 13 becomes clear (the
if multiplies one it by 38 number senators allocated). to be The result 494.
The constitution thus provided that in determin- ing the apportionment of senators between the counties, the counties shall be divided into two classes —those entitled to one or more senators and 413 Mich Fitzgerald, JJ. Concurrence Levin *77 It one senator. was less than entitled to
those recognized a situation it would be that in such populous necessary more whether the to decide county among populous counties, which and less them, to the odd senator. be entitled would simple provided fair a means constitution part question, resolving in is based on that which equal proportions” in the used the "method among congressmen apportionment of decennial gave to whole number it If the nearest the states.48 gave large counties, it; if it it to so be counties, it. so be smaller (and, dividing Applying all this formula eliminating weighted by five,49 land numbers formulae), appears Wayne area/population it that County not to a tenth senator: was entitled Number of Senators April Assigned of Senators to in the 27 Number Which Entitled Based Revised and Apol County on Plan Population_ Wayne 9.591 9 4.151 Oakland 4 2.849 Macomb 3 1.823 Kent 2 1.848 2 Genesee Ingham 1.130 1 1.086 Washtenaw 1
22.478 22 provided The constitution a different method apportionment House, method in the but applied of the the invalidation cannot be after weighted area/population land formulae.50 48 Comment, 4, 2. See Convention Const art § = = county Accordingly, 5 with 2.6 38 98.8. 13 ÷ senators X population part of the of the have been at least state’s would 2.6% larger county group. any county provided least with at House formula 0.7% area, representative population and counties state constituted In Fitzgerald, JJ. Levin and Concurrence would, however, It possible the Sen- apply ate method in both houses. In the Senate, Wayne County would be entitled House, senators. In the Wayne County would be 29-1/2) (not entitled to 28 representatives (it County Oakland would be entitled was 12).51 apportioned
The flaw this method is that it artificially divides the counties into groups, two treating one group another, than differently thereby possibly with than less should be combined with 0.7% other small counties (The until there awas total of at least 0.7%. convention 4, 3, that, census, comment to art states § based the 1960 there areas.) legislative would have been 40 such After each area was apportioned representative, *78 remaining representatives one the were apportioned representative to proportions. representative by be to equal areas method of applied today That method cannot be because such longer permissible areas are no under the federal they population divergence. constitution because create excessive One cannot first district determine the number of the state and then examine the to districts representatives Wayne and Oakland Coun- to, ties the any districting necessarily are entitled because such decides question. County [51] to Which Entitled Number of Based On Population Representatives Number Assigned Apol Plan in the Representatives April 29 Bay 1.423 1.049 1 1 Eaton Genesee 5.349 3.272 5 3 Ingham Jackson Kalamazoo 2.522 Kent 5.279 Lenawee Livingston 1.799 2 3 5 1.068 1 1.191 8.249 1 8 Macomb Monroe Muskegon 1.599 2 1.871 2 Oakland Ottawa Saginaw 12.016 12 1.866 2 2.708 3 St. Clair 1.648 2 Washtenaw 3.144 3 Wayne 27.765
83.818 413 Mich JJ. Fitzgerald, Levin and
Concurrence those as as generating questionable results at least adopted the Court had generated the method exam- For opinion. to March 25 pursuant Senate, County is entitled ple, in the Kalamazoo is County 0.8713 senators. Because Kalamazoo senator, be one it would entitled less than entitled to less with all other counties grouped ultimate County’s Kalamazoo than one senator. will be residents County fate —whether Kalamazoo overrepre- underrepresented slightly or slightly by the indirect method sented —will be decided choosing one that breaks the fewest statewide, or shifts the fewest cities county lines statewide, townships or shifts least that Wayne For same reasons statewide. as crucial the decision regard residents County senators, is County apportioned whether Wayne un- slightly district making Wayne County each senators, making each or 10 derrepresented, overrepresented, County slightly district Wayne regard crucial County residents Kalamazoo are ulti- they the district size and character placed in. mately is in- County’s representation
While Kalamazoo determinate, guarantee this would Gen- method senators, 1.848 which is entitled to County, esee of appor- method two full senators. Such two-tier at County, If Genesee unjust. tionment would senator, 1.848, is why to a second "entitled” *79 0.8713, not "more entitled” County, Kalamazoo at to ñrst a senator? constitu- is no the federal say
It answer to to Kalamazoo permit tion does not allocation County Kalamazoo of full senator. The County a to shift way in such a line could be broken adjacent from an people number of necessary In re Fitzgerald, JJ. Concurrence Levin and the Kalamazoo county bring County just to district range. The Michigan within 91.8%-108.2% of lines to the fullest following county rule extent is consistent with possible this statewide federal to yield would then have to limitations such a concept justice appor- of and "entitlement” in the of The legislators. practice tionment of historical never following county lines rose to the level it principle justice; always has simply been device for controlling gerrymandering, facilitating preserving elections and communities of interest. following Once the rule of county boundary lines "entitlement”, yielded principle to the Court pretend not could have a neutral and objective guidelines. set of Subjective decisions would have be made which concerning counties are most overrepresented, "entitled” subjec- and more tive decisions would have to be regarding made how such an preferential "entitled” county’s line county accomplished.52 break should be adopted Court’s of apportionment— method indirect apportionment minimizing number line breaks county yields admittedly statewide — however, arbitrary also, results. That its princi- pal virtue: it provides an objective and neutral resolution to an intractable problem. Perhaps Court would implement not the results of this method it produced if had a different result —for example, if Wayne County underrepresented were in both houses —but given result, the actual with Wayne County overrepresented in one house and underrepresented other, in the imple- the Court being suggested It is not the framers made a mistake in adopting apportionment rule. system this set consti forth system compromises; tution was a delicate the smaller counties might unjustly rule, lose under this but would benefit weighted area/population under the land formulae. *80 413 Mich 96 Fitzgerald, and Levin Concurrence JJ. admittedly imperfect this of the results
ments method.
VIII hearing public in submis- written At the urged the Court should sions it has been concepts of to include the criteria amend existing preservation "political of fairness” legislative districts. concepts political many of fairness: fairness, are
There political political partisan fairness, racial political political fairness, fairness, sexual ethnic persons particular issues, and, in interested for Implicit political in the decision of issue fairness. the criteria is and its failure amend Michigan Constitution and its decision comprehend criterion of does not law state political fairness. representation continuity is of indeed While expression value, it is a value which finds in. politi- concept preserving autonomy of local politi- preservation existing cal If subdivisions. pur- assiduously cal subdivisions had been more legislative apportionment, there sued in the legislative apportionment, would, have the 1982 leg- greater preservation existing perforce been again districts. It that the islative apportionment, relevant decided, before Mahan was was reading Rey- reach based on a mistaken nolds v Sims.53 provides
While the 1963 Constitution Legislature 1982, Apportionment In re of State 413 Mich — supra (part A). II, Fitzgerald, JJ. Levin Concurrence preservation existing Senate districts the less (where populous parts of the state counties are district),54 combined to form a it does not contain a requirement like for the populous more counties *81 House, and contains no requirement such for the thereby implicitly rejecting preservation of exist ing districts as a factor for Senate districts counties entitled to one or more senators all House districts.
IX The Court jurisdiction has retained a with view changes to ordering such in the be may required to overcome errors or omissions and to provide for an election and orderly any to make changes required with comply superseding to opinion.55 54 4, 2, (2); Const art see In re of § ¶ State 19). (fn 158, supra Legislature 1982, 413 Mich — 55 Germano, 407, 408-409; 1525; In Scott v 381 US 85 S Ct L Ed 14 (1965), Court, Supreme holding apportion
2d 477 the Illinois after Kerner, Legislature People ment unconstitutional v Illinois 212, 225; (1965), jurisdiction 32 Ill 2d NE2d 33 "retained taking purpose may case 'for necessary such affirmative action as pursuant to insure the 1966 election to a constitu tionally plan’ court, valid ”. The United States district which was conducting proceedings question simultaneously, the same declined delay proceedings to its own Supreme until the Illinois Court could complete its reapportionment efforts plan. ensure a constitutional Supreme The United States Court reversed: "We believe stayed District Court power should have judiciary its hand. The require reapportionment of a State valid or to formulate a valid redistricting plan appropriate only recognized has not been this Court but action specifically the States in such cases has been encouraged.” Similarly, Jordan, Supp (CD Cal, see Silver v 263 F 1966). expeditiously provide This will hearing act prompt adjudication of all state and may federal issues that be further presented by parties, privies persons their may and all who not precluded by usage (28 now be USC "law or in the courts” of this state 1738)by proceeding. reason the orders entered in this See text accompanying fn 28. 413 Mich
Appendix A Township City Breaks County, Line Senate County Line Breaks District 11 township of Washtenaw following one district. moved to create a was
County County Washtenaw 1,221 Township
Saline 89,948 County Lenawee 134,659 225,828 County Monroe District 13 townships Kalama- following cities and moved to create a district.
zoo were *82 County (Note: are Township of Kalamazoo people city an Kalamazoo located within island —not township.) considered movement County Kalamazoo 8,434 Township
Cooper city Kalamazoo Kalamazoo people
+43 79,765 Township 4,677 Township Richland
92,876 45,781
Barry County 51,815 Ionia County 238,027 47,555 Montcalm County In re Appendix A District 31 one following township of Ottawa County part
was moved to of Kent County create a district.
Ottawa County Township 3,546
Jamestown Kent 220,355 County (part) 223,901 District 20
The following one township of Ingham County was moved to create a district.
Ingham County Township 17,144
Delhi Calhoun 141,557 County 88,337 Eaton County 247,038 Senate City/Township Line Breaks (Detroit). city One line was broken District 10
Wayne County
The following population of Detroit City was moved to create a district.
Detroit (part) 17,168 Wayne County 241,518 258,686 (part)
House *83 County Line Breaks District 45
The 4 following cities and townships of Cass 413 96 Mich
200 Appendix A Burén County moved to Van were County a district. create County
Cass 6,307 Dowagiac city 2,394 Pokagon Township 3,361 Township Silver Creek 2,699 Township Wayne 14,761. 81,575 66,814 County Burén Van 54 District were following townships Barry County
The a district. to create Allegan County moved County Barry 4,298 Township
Thornapple 2,251 Township Springs Yankee
6,549 88,104 81,555 Allegan County District townships Ingham following cities County were moved to Jackson to create
County a district.
Ingham County 2,110
Leslie city 2,190 Township Leslie
4,300 78,316 74,016 County (part) Jackson District townships Wayne County following County Monroe to create part
were moved to a district.
Wayne County 9,849 Township
Huron *84 In re 201 Appendix A Sumpter 11,112 Township
20,961 56,415 77,376 Monroe County (part) District 48 following 2 cities and of townships Calhoun were moved to
County part of Kalamazoo (Note: County create a district. There is a island of Battle township Creek con- Township 5 sisting people which wholly contained within Battle Creek City and is not con- sidered a movement of that township.) Calhoun County 10,157
Bedford Township Battle Creek city+
5 people of Battle 35,729 Creek Township
45,886 42,089 87,975 (part) Kalamazoo County District 87
The following townships 3 Livingston County were moved to Shiawassee County create a district.
Livingston County Township 2,436
Cohactah 2,611 Deerfield Township 4,175 Oceola Township
9,222 80,362 71,140 County Shiawassee District 102
The following 2 cities and townships of Gratiot were County moved to Midland to create County a district.
Gratiot County 1,526
Bethany Township Mich Appendix A 4,107 Louis city St.
5,633 79,211 73,578 County Midland District were townships Bay County following County to create Saginaw part
moved *85 district.
Bay County 17,494 Township
Bangor 10,418 Township Hampton 1,676 Township Merritt 29,588 85,682 56,094 (part) Saginaw County District townships County of Tuscola following 3
The to create a dis- County to Lapeer moved were trict. County
Tuscola 3,192 Township Arbela 4,429 Township Millington 2,122 Township Watertown
9,743 79,781 70,038 Lapeer County District 78 Clair townships of St. following cities to create were to Sanilac
County County moved a district.
St. County Clair 3,069 Township
Burtchville 4,632 Clyde Township 8,496 Township Fort Gratiot 33,981 city Port Huron
50,178 90,967 40,789 County Sanilac In Appendix A Summary: the House Plan there are involving line breaks
county of 27 cities and townships. movement House City Township Line Breaks District 32
Wayne County
The following population of Allen city Park was moved to Dearborn Heights to create city a district 15,687
Allen Park city (part) Heights 67,706 Dearborn city
83,393 District 33
Wayne County following population of Westland city was
moved to City Garden and Inkster city to *86 create district.
Westland city (part) 6,955 35,640 Garden City city 35,190 Inkster
77,785 District 34
Wayne County
The following was Livonia moved Redford to create a dis- Township trict.
Livonia city (part) 22,991 58,441 Redford Township
81,432 413 Mich Appendix A District County
Wayne following population Township of Canton The a district. was moved to create Township (part) 13,846 Canton city 3,366 Belleville city 24,857 Romulus Township 18,940 Burén Van Wayne city
21,159 82,168 District County
Oakland following Troy city population of was moved to create district. Troy (part) city 28,445 city 20,914 35,375 Hazel Park Heights city Madison
84,734 District County
Macomb Sterling Heights following population city moved to a district. was create Sterling Heights city (part) 20,098 Township 14,230 Macomb Township Shelby 38,939 city 5,282 Utica Washington Township 10,213
88,762 *87 Appendix A District County
Macomb following population of East Detroit city was moved to create district. 7,639
East Detroit city (part) Lake Township 76,210
St. Clair city Shores 83,959 District County
Washtenaw following City of the of Ann Arbor was moved to create district. Ann 22,531 city (part) Arbor (part) 66,316 Washtenaw County
88,847 District 58
Ingham County
The following population of Lansing city was moved to create a district.
Lansing city (part) 45,387 Ingham County (part) 45,071
90,458 District 81 County
Genesee The following population of Flint Township was part moved to of Flint City create a district.
Flint Township 21,270 (part) Flint (part) 69,515 city
90,785 *88 Mich 96 District 46 County
Kalamazoo following Kalamazoo Town- The ship moved to create a district. was Township (part) 9,494 Kalamazoo Kalamazoo, city 79,722
89,216 following townships Summary: cities and The split— were Population County City/Township Moved 15,687 city Wayne Allen Park 6,955 city Westland 22,991 city Livonia 13,846 Township Canton 28,445 city Troy Oakland 20,098 Sterling Heights city Macomb 7,639 city East Detroit 22,531 city Ann Washtenaw Arbor 45,387 Ingham Lansing city 21,270 Township Genesee Flint 9,494 Township
Kalamazoo Kalamazoo Rapids The Note: Cities of Grand Warren split were also to create two districts each within city. each City split
The to create 17 Detroit was also including Highland districts within its limits and Harper Park, Hamtramck, Woods and the Grosse townships. Pointes cities and
Appendix B Population and Variances
House average population There are 54 districts under average population. and 56 districts over In Appendix B an average population over ideal district is The average population 4190.8. under the ideal is 4346.6. The average district variance is 4268.7. average percentage variance from ideal over and under the average percent 4.98% 5.16% of variance is 5.07%.
The median from average deviation is 4955.5. *89 The difference between the smallest largest and 13,774. is district maximum
The difference from ideal plus is 6870 (8.16%) (8.20%). 6904 minus
The the 56 smallest districts (needed House) 4,481,171 for is majority which is 48.38%.
There are:
39 within districts ideal 4% 52 districts exceeding ideal 6% 32 districts within of ideal 3% exceeding districts of ideal 5% The ratio of largest district to the smallest is district 1.17 to 1.
The number of county is 10. breaks The number city/townships moved over line county is 27.
The number of city/township lines broken 13. is 413 Mich Appendix B
Senate average population over There are districts average population. under districts ideal is average population The over under 12,264.6 12,264.4 under. over and 12,264.5. is average The variance from ideal is percentage variance 5.0319% under. over and 5.0319% is average percentage variance 5.3061%. perfect equality
The median deviation from 14,602.5. all districts is largest
The difference between the and smallest 39,626. district is (+)
The maximum deviation from the ideal is (8.12%). 19,788 ( )
The maximum deviation from the ideal — (8.14%). 19,838 *90 of 20 population districts with the least (number
population necessary majority) to elect is = 4,645,051 50.15%. of 19 with least popula- districts (number
tion if Lt. necessary majority to elect breaker) — 4,398,013 Governor is used as tie is 47.48%.
The number of districts of ideal is within 4.00% 14. 209 Appendix B exceeding
The number of districts of ideal 6.00% is 19.
The number of districts within of ideal is 3.00% 10.
The number of exceeding districts of ideal 5.00% is 22.
The number of is 4. county breaks The number of city/township moves county breaks is 6.
The number of 1 city/township lines broken is (Detroit).
The ratio of largest district the smallest 1.2 district to 1. Senate Percent Percent Over Under Over Under Population Average Average Average Average District 223,901 19,838 1 31 8.13 224,151 19,588 2 32 8.03 225,084 18,655 3 21 7.65 225,168 18,571 4 25 7.61 225,281 18,458 5 29 7.57 225,828 17,911 6 11 7.34 225,847 17,892 7 9 7.34 226,369 17,370 8 38 7.12 227,322 16,417 9 30 6.73 228,059 15,680 14 6.43
10-
229,455
14,284
26
5.86
233,754
9,985
19
4.09
235,183
8,556
23
3.51
238,027
5,712
13
2.34
238,090
5,649
22
2.31
239,298
4,441
27
1.82
240,873
2,866
33
1.17
243,022
37
0.29
717
243,301
36
0.17
247,038
3,299
1.35
247,847
4,108
1.68
247,964
4,225
1.73
249,629
5,890
2.41
*91
Final Order Reporter. 21, Entered May 1982. — matter, having arguments by In this heard oral 5, 1982, petitioners respondents and on March and other inter- by petitioners respondents and and 5, 1982, persons ested on and May Having petitioners and by considered briefs filed all respondents presentations and written filed by persons, other interested and Having considered certain modifications plans by submitted to the for approval Court 29, 1982, Bernard Apol April J. on 27 and and showing Because no has been made that modifications "do not submitted on plans cause the In re
Final Order with April compliant 27 and to be more opin- rules and standards set forth this Court’s 25, 1982, ion” of March and having motion rehearing Petitioner’s for been date, denied this therefore, pursuant opinion
Now the Court’s 25, 1982, filed on order judgment March en- date, tered thereon as of the same and the orders 3, 24, dated February the Court and March 4, 19, 13, April 1982, May and and all it is ordered and hereby Secretary of State is di- rected to publish provided by law and hold the legislative elections year for this in accordance with redistricting reapportionment plans hereby approved particularly described next paragraph. plans approved are:
1. The plans submitted this Court for ap- proval Bernard Apol; J. for the Senate under 1982, April 27, the date of and for the House of Representatives April 29, 1982; under date
2. Substituting for provisions parts said plans dated April 27 and the superseding provisions of the modifications dated submit- ted Bernard J. Apol approval May 12, 1982.
The clerk of this directed to deliver forthwith to the office of the of State Secretary copies certified true the ap- this order and of proved plans and modifications.
The Court jurisdiction retains for purpose taking such may necessary action as affirmative 413 Mich Moody, Jr., Dissent Blair J. pursuant
to insure an election in 1982 to a orderly valid constitutionally plan. (dissenting). Moody, Jr.,
Blair J. I respectfully from the final order of the Court. The law dissent requires a closer adherence to the constitutional principle person, of "one one vote”.
A of the Court has decided to majority adopt a reapportionment plan Michigan modified for the Michigan Representatives. Senate House of does not Today’s adopt any changes order opinion criteria of our March 25 directing drawing reapportionment plans under the su In re Apportionment pervision Apol. of Bernard J. ante, Legislature 1982, of State p 96. — I join colleagues my reaffirming basic opinion thrust of our of March which squarely faced the of an problem apportionment invalid scheme under our constitution provided the development apportionment of an plan to as- sure an election in 1982. orderly
However,
approve
this Court
should
a plan
which would adhere to our
duty
popu-
establish
lation as
starting point
"the
for consideration
controlling
criterion for
iii
judgment
legislative
Sims,
controversies”. Reynolds v
533, 567;
377 US
1362;
84 S Ct
Acting under its opinion March 25 the in its of Court established following primary criteria: district lines shall
"Senate and House election preserve county lines with the least cost to the principle equality between federal the maximum consistent with election districts preservation exceeding county lines and without range divergence under the fed- of allowable which, eral constitution Supreme until the United States otherwise, declares shall be (91.8%-108.2%). deemed to be 16.4% county necessary lines, "Where it is to break range because otherwise the of allowable diver- gence exceeded, would be there shall be shifted townships necessary to reduce the fewest cities or bring population divergence sufficiently to it range divergence. within the of allowable range of "Because of the narrowness of the divergence, only anticipate allowable we one plan organize will the counties with the least (Italicized breaking county language lines.” 25.) p Ante, added after March 141. population divergence
The allowable 16.4% (+8.2%) Howell, 410 US was lifted from Mahan v (1973). 315; 979; 93 S Ct 35 L 2d 320 Mahan Ed plan Virginia Dele- held that a gates for the House of total which included an extreme allowable —9.6%) (+6.8%, un- deviation of was not 16.4% prima abstract, fa- constitutional. in the Written may equitably cie, tutionally acceptable. and consti- such a deviation upon application
However,
anticipated
case,
in this state and in this
6, 1.
Const
art
§
A factual of the Court’s reveals a *96 devastating impact upon principle popula- of Application equality. popula- tion of the allowable plan tion deviation in the Court’s in results sub- many stantial dilution or in enhancement of votes throughout districts the state. An allowable devia- applied Michigan tion of tricts which have an ideal Senate dis- 16.4% population 243,739 of is (+8.2%). persons +19,987 This to a amounts total potential average deviation from the of almost persons among 40,000 Senate districts. The 16.4% applied Michigan deviation as House districts population 84,201 with an +6,904. ideal of is This potential in 14,000 results a variance of almost persons among House districts. approved by
Under the drawn and now largest Court, the total deviation between the and persons 39,626 smallest Senate (16.26%). districts is largest popula- district in of terms tion, i.e., least, where each vote is worth the has a exceeding (+8.12%); 19,788 deviation the ideal smallest, i.e., the most, where each vote is worth the ( 8.14%) persons 19,838
is less than the — ideal. A similar result is reflected in the House plan. populous The most district has a deviation (+8.16%); 6,870 persons 6,904 the smallest is ( 8.2%) under the ideal-sized House district. — population total maximum 13,774 deviation is (16.36%). It becomes difficult to swallow the conclusion that a difference 39,626 between Senate districts of persons persons and 13,774 House districts of is equitable impair principle and does not Jr., Blaik J. Dissent Moody, Yet, if these results truly equal representation. in occurred the rare exception only were occasion, would perhaps they equitably constitutionally digestible. however, is that special significance,
What have a substantial number of districts great ideal-sized district deviation from the population of the allowable diver- fall near the extremes gence. popu- of 38 Senate districts have a
Twenty-three 10,000 persons deviation excess of lation (+4.1%). districts fall far Eleven of these Twelve have more an ideal-sized district. below 10,000 with persons perfect than above district Considering another com- population. equality have a devia- 22 of districts parison, 12,187 Eleven districts tion excess (+5%). *97 ideal, than deviation above the greater have a 5% 11 fall more than the ideal. In below 5% addition, 38 have a Senate districts out of 9,750 persons deviation in excess of Fi- (+4%). average the deviation from the ideal-sized nally, 243,739 12,265 persons district of is (+5.03%). This is not the case where a substantial devia- tion from the norm is the Unfortunately unusual. unfolded, plan, population once resulted in many gravitated differentials which toward ex- tremes.
A pattern similar House dis- is reflected as to average percentage tricts. The from the variation 84,201 ideal-sized district of Translated is +5.07%. into persons, average this reflects that there is an 4,267 deviation of persons per Fifty- House district. four of 110 House have a population districts 413 Mich Moody, Jr., J. Blair Dissent (+5.94%). persons 5,000 in excess of
deviation population Sixty-four of 110 have a deviation persons Seventy-one (+5%). 4,210 excess of deviation in excess of have a
3,368 (+4%). apparent application It becomes accentuates the extreme Court’s criteria and not Restricting population the norm. divergence the allowable great popu-
would in measure establish equality primary principle lation recognized. as the to be up of the Court to measure to the fails requirement constitutional that a court-ordered reapportionment plan should formulate districts nearly equal population that are "as practicable”. as is upon analyzing reap- Mahan, In portionment plan Virginia for the House of Dele- gates, Supreme the United States Court discussed measuring population equality. several methods of population measure, One largest ratio between the district, and smallest is the same Michigan plan plan Mahan, inas 1.18 to since this patterned
was after Mahan. applying However, other relation- ships Michigan plan discussed in Mahan to the deficiency. dramatizes its constitutional In the Michigan plan, average percentage Senate (That perfect equality variation from is is +5.03%. district). persons 12,265 from the ideal-sized In the plan, average percentage House deviation is (That persons 4,269 from the ideal +5.07%. district). average only Mahan, deviation was *98 ±3.89%. significance, emphasized,
Also of as has been are the number of districts which fall near the ex- 219 In re Moody, Jr., Blair J. Dissent plan In the deviation. of the allowable treme (50%) and 52 of Court, 38 Senate districts 19 of (47.27%) a population have districts 110 House 9 out of dis- Only than greater deviation 6%. Mahan. (17.3%) in deviation had the same tricts Furthermore, Senate dis- Michigan 14 of only (36.84%) 110 House districts and 39 of tricts ideal, (35.45%) whereas in of the fall within 4% Mahan, 35 out higher: figure significantly was (67.31%). of 52 districts standard of Mahan is
Thus, surface 16.4% appropriate of an consti- iceberg of the tip but the standard of While the tutional evaluation. 16.4% met, that a Mahan "the fact may be 10% 15% in approved is one State from the norm variation of a similar bearing validity little has Adams, State”. Swann v variation another (1967), 569; L 440, 445; Ed 2d US 87 S Ct Howell, supra, in Mahan v 328. quoted An reflects unfolding Court’s is percentage to a deviation close adherence constitutionality at the outside limits of cannot squared overriding objec- with the constitutional among equality tive of substantial criteria should reapportionment districts. unequal, equal, strive to create districts as not as possible. stated, right an individual’s to vote "Simply impaired legislators unconstitutionally state diluted weight when its is in a substantial fashion living compared when with votes of citizens supra, 568. Reynolds, parts other of the State.” when Such a conclusion becomes more self-evident dis- an ideal-sized divergence a substantial from *99 413 96 Mich 220 by Moody, Jr., Blair J. Dissent present majority trict is of Senate House districts. plan opinion follows Court’s as
Today’s possible self-imposed as within time con- closely Mr. Apol performed straints. admirable service However, following rigid the Court’s directives. concerning adherence to the criteria population lines, abstract, deviation and written county advised, required, is not nor is it when modifica- may comport substantially tions be made to closer primary principle population to the equality. profess The Court should no vested interest in a divergence certain allowable experience when shows it can substantially improved to assure constitutional and still achieve an acceptability plan. impartial
Such
a modified
could have been devised
following the same
line criteria
boundary
outlined
reapportionment
in the
opinion,
permitting
but
a de
minimis
only
population
deviation
from
Cummings,
Cf.
v
Gaffney
equality.
735;
412
US
Reges
White v
2321;
(1973);
S Ct
37 L
Ed 2d
ter,
755;
2332;
US
93 S Ct
of this this serve the citizens of fully not may judgment” *100 develop plan allow- available2 to state. Time was deviation which population minimis ing a de only Equal Protection requirements of follows constitutionally does not include Clause —one line-drawing. unacceptable lines is a boundary
Reasonable adherence mini- in an effort to useful method legitimate genesis and has a gerrymandering deliberate mize in opinion The Court its of Michigan history. in respect with to bound- adopted criteria March drafting in the of a in order lines aid ary reapportionment plan. neutral if, rational clearly "But even as a result of a according legislative represen state of policy some subdivisions, is sub population political tation to in the merged controlling as the consideration particular legislative of seats in the of State’s citizens right then the of all body, weighted vote cast an effective and adequately impaired”. Reynolds, would be unconstitutionally cannot, Thus, under 581. this Court supra, the constitu guise policy”, supersede of "state among elec principle equality tional of substantial 407, Finch, 420; 97 431 US tion districts. Connor v 1828; 52 L S Ct Ed 2d (1977). develop only week to The Court was advised it would take one plan.
such a
A movement from substantial equality many districts caused so excessive boundary adherence to lines turns the "constitu- requirement equality tional its head and representation people repre- exalt[s] district over sentation”. p Wayne County, post, (Blair Moody, Jr., J., dissenting). 566, in Reynolds, supra,
As was stated "a denial protected rights demands constitutionally judi- cial our oath and our protection; require office no less us”. reasons, foregoing
For I dissent from the would, adoption plan of the Court’s in lieu of granting the motion rehearing, reduce population divergence opinion allowable March 25 and direct the redrafting of a under such modification. Denying Stay
Order Reporter. 1982.— Entered May *101 Court, On order of the parte application ex Kleiner, Board, by Commissioners Brouillette and Lurvey for stay pending United Supreme States appeal is considered and is denied. hereby Fitzgerald Levin
Justices concur and say: The Democratic members the Commission on Legislative Apportionment have filed a motion for stay this judgment Court’s of March 25 and order of May pending their appeal to and Court, decision by the United Supreme States have asked this Court in the interim to direct continuation of the existing legislative districts or the adoption of one of plans submitted Denying Stay
Order apportionment Democratic members of the com- mission. ordinarily
While this Court should take what- right ever action will facilitate full exercise of the appeal decision, from this Court’s this Court grant stay cannot immediately ordering in the instant case without implementation of some (either year’s alternative for this delay election a further primary, in the an extension of the terms of legislators, apportioned a continuation of the 1972 legislative large, adop- districts, an election at districting tion of another plan) Court, inconsistent with the decision of this thereby granting, appeal because an has been stay taken, should, relief denied on the A merits. therefore, be denied.